NEW YORK (WOMENSENEWS)--Columbia University, spurred by student criticism, changed dramatically its method of dealing with student sexual misconduct for this school year, but critics say the new policy overprotects the accuser and scuttles important protections for the accused.
Supporters, both women and men, say the new policy represents an advance over the old one that kept many complaints from being heard. During the previous five years, only two such cases were heard and those were dismissed, while a hospital across the street from the university's main campus reports that between three and five students each month seek emergency room care after a sexual assault and the Columbia Rape Crisis Center receives about 100 calls per year.
Private colleges, unlike public ones, have flexibility in meeting federally mandated fundamental fairness requirements in campus judicial processes.
"There is no static concept of what fairness is on a college campus," said Brett Sokolow, a lawyer and risk management consultant on campus security. "Campus procedures just don't mirror the criminal process. There is a great big difference between the law and campus judicial policy," Sokolow added. He called it misguided to think of transforming the college judicial process into something like the criminal courts.
Critics Say Policy Does Not Protect Rights of Accused Persons
Critics, both men and women, argue that, however legitimate the concern is over how complaints were handled, the new, less legalistic process sacrifices the rights of the accused. The new policy does not require the accused to be present to hear the testimony of a complainant's witnesses at the disciplinary hearings, does not permit the accused to cross-examine witnesses at the hearing and does not permit the accused to be represented by an attorney at the hearing or for an appeal.
"Theoretically, you have more rights a block away from Columbia than on its campus," said Thor Halvorssen, executive director of the Foundation for Individual Rights in Education, known as FIRE, and a non-student.
"I see their motivation and their goodwill," said Halvorssen, referring to the student organization that promoted the new policy, "but sometimes people are wrong. Sexual misconduct is a very troubling issue on college campuses, but you don't solve it by sacrificing fundamental fairness."
FIRE has launched a letter-writing campaign to urge Columbia trustees to repeal the new policy. The national organization fights what it calls violations of individual liberties and academic freedoms on college campuses nationwide.
The Wall Street Journal, in an editorial on Oct. 4, criticized Columbia for what it called the "ominously increasing tendency to devalue due process in the interest of a select category of entitled victims." The university, it said, was bowing before "the limitless power today of gender- and sex-related offenses and the related irrationality now accepted as rational thinking."
Alan Stone, Columbia's vice president for public affairs, rejected the criticism in a follow-up letter to the Wall Street Journal. He said that over the years, universities' approach to discipline "has been consistently upheld by the courts in recognition that discipline procedures on campus are not simply adversarial judicial procedures, but support educational and other community needs."
Some prominent feminists also protested the new policy, saying in an open letter to the university: "We are dismayed by provisions that infantilize students by streamlining away both the protections for the accused and the accountability of the accuser, as the juvenile justice system routinely did to 'protect' children."
The letter from Feminists for Free Expression, which includes Nora Ephron, Nancy Friday, Betty Friedan and Erica Jong, adds: "This policy, by isolating the parties from each other and enforcing secrecy, attempts to combine a disciplinary procedure with therapeutic consideration of 'the emotional needs of individuals who have experienced sexual misconduct.'"
New Policy Eliminates Gatekeepers, Ensures a Hearing
The policy in question, the Disciplinary Procedure for Sexual Misconduct, is one of three disciplinary avenues a student may take to file a complaint against another student. It provides for disciplinary hearings with the possible penalties for the accused of probation, suspension or dismissal. The accused also could ask that his or her dean hear the case without a hearing. Mediation is theoretically possible. And, of course, the student is free to file criminal charges regardless of the university's disciplinary procedures.
Aside from the hearing's procedures, the paramount critical difference between the old and the new sexual assault policies is that the old required assault victims to make their allegations in writing to one of 12 associate or assistant deans, called gatekeepers, whose job it was to "receive and review" the statement and decide if it was "plausible" and whether it was "proper" to convene a university-wide panel to hear the charge. The gatekeepers were also required to "discuss with the complainant differences and similarities between sexual harassment and sexual misconduct policies and procedures to enable the complainant to choose the most appropriate recourse."
The new policy eliminates the gatekeepers and creates a first-of-a-kind, full-time position of coordinator for the Office of Sexual Misconduct Prevention and Education. The new coordinator, Charlene Allen, is a graduate of Northeast University law school.
Once the complaint is made, the new process is streamlined in several important ways:
- The accused must be notified by a letter, but not by registered mail.
- Those hearing the complaint will be two deans and one student, not one student, one dean and one administrator.
- The complaint must be timely if the accused is still a student in the same school as the complainant, but can be made up to five years after the occurrence rather than within 180 days of the event.
- The hearing panel makes a determination of what occurred and the proper penalty. The old policy explicitly stated that the complainant had an obligation to present "clear and convincing" evidence that the sexual misconduct occurred.
The policy also calls for a campus subcommittee of the President's Advisory Committee on Campus Security to ensure that the policy is carried out fairly.
The revised Disciplinary Procedure for Sexual Misconduct was approved last February by the university's 77-member senate of students, faculty and administrators, replacing the 1995 sexual misconduct policy that automatically had come up for a mandatory three-year review.
Formerly, Women Were Intimidated, Degraded by Process
Sarah Richardson, president of a Columbia-based student organization, Students Active for Ending Rape, known as SAFER, said the old policy was never advertised, as required by law, except through one e-mail sent to students in the summer. She added that the gatekeepers sometimes forced women to tell and retell their stories so many times that they were intimidated, exhausted and degraded. Others, she said, discouraged women from filing complaints, suggesting time off instead.
Nationally, it is widely reported that about one in four women students is raped or sexually assaulted.
In 1998, 481 four-year colleges and universities with campuses of more than 5,000 students reported a total of 1,240 forcible sex offenses and 159 non-forcible sex offenses, according to the National Center for Victims of Crime.
Students Active for Ending Rape is trying to create a national network of student activists. They have received inquiries about Columbia's new policy from students in California and Iowa as well as elsewhere on the East Coast.
At Columbia, a private university with an enrollment of 21,800, reliable figures have been hard to come by because of problems with systematically collecting and keeping records.
The non-controversial elements of the new policy call for more accurate collection and reporting of campus crime statistics and more prevention and education around sexual misconduct and assault. In 1999, Columbia reported five forcible sexual offenses, two of them on campus and three in off-campus buildings; in the past it had reported zero to two rapes every year.
"Universities must have a response procedure in place for sexual assault," SAFER's Richardson said. "You can't wait three years for a (criminal) case to draw out. Students go to class together. Students live next door to each other."
Mashadi Matabane is a New York-based writer.