February 25, 2013

After False Report, Cornell Defends New Rules for Sexual Assaults

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A recent false report of attempted rape should not stoke fears about Cornell’s new policy for handling sexual assault accusations, several high-ranking administrators have said in defense of their controversial decision to lower the burden of proof in these proceedings.

In Spring 2012, over the dire warnings and desperate pleas of many law professors and local attorneys, the University pushed through a series of changes to its sexual assault policy.

The new system, which is motivated in part by a contested directive from the U.S. Department of Education but also by a desire to reduce the number of campus rape cases, makes it far easier for students to be found guilty of sexual assault.

But does the new policy make it too easy for innocent Cornell students to be wrongly found guilty? That is the objection vociferously raised by opponents of the change, who say that false reports of sexual assault — including one high-profile announcement this November by Cornell police — highlight the perils of stripping the accused of certain traditional safeguards.

Under the new sexual assault system, accused students’ attorneys cannot cross-examine the accusing party, defendants must only be found guilty on a “preponderance” — or 51 percent — of the evidence to face punishment, and students can no longer appeal decisions to a hearing board that includes students. The previous, higher standard for these cases was “clear and convincing evidence.”

“False reports … serve as a reminder of the dangers of Cornell’s policy, and of the eternal need for procedural protections, no matter how well-intentioned the authorities are,” Prof. Kevin Clermont, law, said. “The University should provide protection to the accused as a matter of fairness.”

Several key defenders of the change, however, say the allegedly false sexual assault report does not weaken the rationale behind the policy change. Going further, they say that the rationale for the new policy is affirmed, even strengthened, by Cornell police’s determination in November that a sexual assault claim was invented.

“I thought the fact that this incident was investigated carefully and professionally, that we figured out what the story was, was a terrific example of the system working,” President David Skorton said in an interview with The Sun. “That doesn’t mean that it wasn’t upsetting … But, right now, I’m convinced the way we’re doing it is the right way.”

On Sept. 27, police said in a mass email alert that a female student barely escaped after a man dragged her into the woods and tried to rape her. The attempted rape was reported to have occurred on the Trolley Bridge near the Engineering Quad, on a Wednesday at 9:30 p.m.

Two months later, police announced that they had “irrefutable evidence” — supported by video footage — that the attempted rape report was invented. Although she has not faced charges for what is considered a criminal offense, the student who filed the report is no longer enrolled at the University, according to Police Chief Kathy Zoner.

Citing student confidentiality, Zoner declined to comment on several other aspects of the case, including whether or not the student has since admitted to fabricating the report, whether or not she was expelled by Cornell and whether she named an individual as her attacker.

Like Skorton, Cornell Judicial Administrator Mary Beth Grant J.D. ’88 said the apparently false sexual assault report is evidence that Cornell police are careful about not charging innocent students.

“I think the false sexual report demonstrates that the Cornell police did their job: they worked hard to determine if there was evidence to support a case of sexual assault, and they worked hard to determine if there was evidence of a false report,” Grant said, noting that she cannot comment at length about the case due to student confidentiality laws. “I think people who are worried there’d be more false complaints should take stock in the fact that police really worked hard and did not charge someone when the evidence did not support the allegations.”

Clermont sees it differently. Like other legal experts, he blasted the University for vesting too much adjudicatory power in the hands of those investigating the accusations.

“The University’s attitude is, ‘Trust us.’ A good part of the American legal system has grown up because centuries of experience have shown that trusting authority does not provide sufficient protection,” Clermont said. “For the accused, a lot is at stake.”

Clermont and other law professors, including Prof. Cynthia Bowman, law, have focused their complaints on Cornell’s new policy. But the dispute may stem from a more fundamental divergence in perspectives. Whereas Clermont and other critics of the change cite statistics that recognize the potential for false rape accusations, proponents of the lower burden of proof typically — but not universally — downplay the prevalence of false rape reports.

This world-view can be found on websites like that of the Cornell Women’s Resource Center, which vocally supported the new policy, saying it would create a fairer process and better protect students who have been sexually assaulted.

Citing national studies, the WRC website says that one in four women on college campuses are victims of rape or attempted rape.

It also says that “women do not lie about experiencing sexual harassment.”

Estimates about the prevalence of false sexual assault reports vary.

In 2009, the National Center for the Prosecution of Violence Against Women released a study that said “methodologically rigorous research” finds that between two and eight percent of rape reports are false. However, other organizations, such as the False Rape Society, often cite an article in the Columbia Journalism Review that says statistics on false rape “depends on who you ask” and that some estimates are much higher.

Whatever the precise percentage of false reports is, for William Shaw ’69, an Ithaca attorney and vocal critic of the revised policy for sexual assault cases, the rights of students accused of sexual assault should never be ignored.

Shaw said he has represented dozens of Cornell students both falsely accused and overcharged — with both sexual assault and other offenses — and worries the University does not fully recognize the “severe emotional trauma” that comes with a false accusation or the serious interim consequences pending the dismissal of the charge, including temporary suspension and removal from campus.

“The new policies have denied fundamental rights to the accused,” said Shaw, who despite his criticism, stressed that he believes Grant and the J.A.’s office is working with good intentions. “The University’s policies deserve to be criticized and should be changed because of their lack of concern for the rights of the accused.”

Original Author: Jeff Stein