Penn’s policies have Philadelphia’s Ivy League school in the middle of a national conversation on sexual assault.
Things ramped up last year when President Obama got involved in the discussion about campus rape — everyone’s trying to reverse what’s looking like an epidemic and make it easier for survivors to come forward, both to law enforcement and to the school.
But new regulations and guidelines laid out by the Department of Education have drawn fire, with some saying they’re unfair to people accused in the assaults, with their right to due process stripped away. Penn in particular garnered national press for sexual assault policies that were challenged by members of its own faculty.
In an open letter last month, 16 faculty members at Penn Law — the school that has produced more than 40 United States congressmen, seven governors and dozens of judges — claimed the school has gone too far in its implementation of policies to curb sexual assault, and isn’t allowing its students to properly defend themselves in university hearing settings, where penalties like expulsion could be on the table.
“We do not believe that providing justice for victims of sexual assault requires subordinating so many protections long deemed necessary to protect from injustice those accused of serious offenses,” the faculty members wrote.
Among the faculty’s complaints about Penn’s process:
1. Students don’t have a right to a lawyer during hearings in front of a student conduct board.
2. Lawyers aren’t allowed to cross-examine the accuser.
3. Lawyers can’t directly challenge the investigator who determined there was enough evidence to “file charges” and bring the accused person to a hearing.
4. Only two out of three members of a board evaluating a student accused of misconduct have to think that there is a preponderance of the evidence, basically meaning that they have to be 50.1 percent sure the person is guilty.
5. There aren’t protections against self-incrimination should a parallel criminal investigation be taking place. SO: If an accused student incriminates themselves in this school hearing, that same admission could technically be used in a different criminal hearing.
But should students accused of rape or sexual misconduct be protected in ways different from other students accused of wrongdoing? Not according to a group of Penn Law students who penned a response to their faculty. Emily Turner, a third-year law student who signed the open letter, said it’s been widely accepted that students in trouble with their schools are owed little to no due process because it isn’t the criminal justice system at all. It’s a college where incarceration isn’t on the table. The worst that could happen is a student gets expelled.
“The professors’ concern for due process has been limited only to cases of sexual assault,” Turner told Billy Penn. “This suggests a belief that sexual assault reports are more worrisome or suspicious than reports of other misconduct, which is both untrue and offensive.”
Penn has stood behind its policies, saying the school believes the process it has developed “responds appropriately to the federal government’s regulations.”
We wanted to determine how Penn’s sexual assault policies stack up, so Billy Penn analyzed the policies utilized by four other schools of similar size and stature to Penn, including two other Philadelphia schools; Penn State; and Cornell, another Ivy League.
For context, here’s a look at the number of sex offenses reported by each university we examined from 2011 to 2013 (as statistics for 2014 haven’t yet been released). A disclaimer: Experts say as many as one in four women on college campuses will be sexually assaulted and less 5 percent of those women report the assault to law enforcement or the school. These figures reflect only those offenses reported to the school and do not reflect the actual amount of sexual violence that occurred.
While the Penn Law faculty members say their frustrations lie more with the feds than Penn itself. But they argue while it’s important for survivors of sexual violence to get justice, it’s still vital that those they accuse are afforded certain rights, too.
“I think a lot of universities feel under the gun and think they will lose financial support and not only do what the department says, but where I fault Penn is going beyond what even the Department of Education mandated,” David Rudovsky, a Penn Law fellow and signer of the open letter, told Billy Penn. “I have significant concern about the DOE, but also that universities have become even more gun-shy.”
Here’s a look at each issue the professors raised, and how Penn’s policies compare:
Right to counsel
The members of the Penn Law faculty who drafted the open letter to the university argue that students accused of sexual violence are denied a fundamental right of counsel, AKA their own lawyer. While students at Penn are technically allowed to seek the advice of an attorney throughout the process, that attorney can’t question anyone or take part in proceedings. Rudovsky says in these cases, “the lawyer has no role.”
The Department of Education offers no guidelines for allowing students to retain lawyers in the university hearing process, other than saying that if the school permits one party to have lawyers or other advisors at any stage of the proceedings, it must do so equally for both parties.
Here’s a look at the policies of Penn and schools of similar size and stature with regard to whether or not students accused of sexual misconduct have a right to counsel:
Penn – Lawyers can provide advice only.
Temple – A student may choose an “advisor,” AKA an attorney or other legal representative that can serve in an advisory capacity only. (Here’s a link to Temple’s sexual misconduct policy.)
Drexel – An advisor or attorney may be used for advice only. (Here’s a link to Drexel’s code of conduct policies.)
Penn State – An advisor may “assist” in the process of drafting a response to any charges brought against a student. (Here’s a link to Penn State’s student code of conduct policies.)
Cornell – A student may retain counsel for advice only. (Here’s a link to Cornell’s code of conduct policies.)
Right to cross examine
Penn, along with many of its peer institutions, has gone above and beyond what the Department of Education recommends with regard to allowing attorneys question accusers. Most schools, including all of the five we looked at, don’t allow it. But they do allow accused students to submit questions to be asked of the accuser by a member of the hearing board.
In this case, the Department of Education says schools may allow counsel to cross-examine accusers, but provisions should be in place to ensure the accused does not question the accuser. The Penn Law professors against the current structure say it’s imperative that attorneys be allowed to do so, and that strict rules can be put in place so attorneys can’t bring up past sexual experiences of the accuser — like they can’t in criminal proceedings.
“I don’t think we will ever get a reliable result without cross in cases of ‘he said this, she said that,'” Rudovsky said, “unless we just assume she’s trustworthy and he’s not.”
Turner disagreed, saying that attorneys can’t cross-examine witnesses or accusers in other cases of academic misconduct before school hearing boards. She argues: Why should they be allowed to in cases of sex offenses?
“My feelings are that the minimal procedural standard should be the same for all nonacademic misconduct cases,” Turner said. “Since currently, lawyers don’t have to be allowed into proceedings at all in either public or private settings, I think requiring a unique higher minimum standard only in sexual assault cases would definitely be a problem.”
Here’s a look at the policies of Penn and schools of similar size and stature with regard to whether or not students accused of sexual misconduct have a right to counsel cross-examining the accuser:
Penn – Not allowed
Temple – Not allowed, student can suggest questions that the board can ask
Drexel – Not allowed
Penn State – Not allowed
Cornell – Not allowed. Attorneys may attend their own clients’ or advisees’ investigative interview, but may not respond to questions for their clients or advisees, and may not pose questions.
Can a lawyer challenge the investigator?
As part of Penn’s process of investigating instances of sexual misconduct, a university investigator (a former sex crimes prosecutor) presents to a hearing board report on the incident, which states there is evidence that it is more likely than not that the sex offense occurred. The Penn Law faculty against this process say that’s unfair to the accused — their attorney should be allowed to directly question the investigator about his or her inquiry. But because most schools only allow legal counsel on an advice-only basis, this isn’t allowed during the hearing process.
Here’s a look at the policies of Penn and schools of similar size and stature with regard to whether or not students accused of sexual misconduct have a right for their counsel to challenge an investigator outright:
Penn – Not allowed
Temple – Not allowed
Drexel – Not allowed
Penn State – Not allowed, but lawyer can assist student in drafting response
Cornell – Not allowed, but no accused person is denied the right to present evidence and witnesses in his or her own behalf.
How much evidence?
Every school operates on a preponderance of the evidence in accordance with Department of Education guidelines that require the schools do so. This means that a hearing board or sex offense investigator has to find that it’s “more likely than not” that the sex offense occurred in order to sanction the person being held responsible.
Where the faculty take issue here is that, at Penn, only two of three members of the student conduct board need to believe in a preponderance of the evidence. They argue this should be unanimous, and that an evidentiary standard of “clear and convincing evidence” to convict would work better against “wrongful convictions.”
At Temple, unanimity is not required to convict a student, just a majority of the student conduct hearing board. Other schools didn’t make this clear in their policies, either by not listing how many people are on a student code of conduct board, or by relying more heavily on one investigator’s take on the incident.
The Penn Law faculty say that universities should allow students accused of sexual misconduct to be able to defer their university hearing if a parallel criminal investigation is pending in order to protect themselves from self-incrimination — a move that hasn’t been generally accepted by universities or the Department of Education.
Turner says students can’t defer their hearings in other cases of misconduct. They should be able to for sexual assault.
“I think the real question is, ‘why are we only asking this about sexual assault?'” Turner said. “Should all respondents in university hearings where the charge could potentially also be a criminal charge be able to defer their hearing for this reason?”
No colleges we examined allowed students to defer their university proceedings, but most did note that the accused don’t have to testify if they fear self-incrimination.