Channels, Fall 2016

Channels • 2016 • Volume 1 • Number 1 Page 173 reported. 37 The step from Robbie’s Law, which still allows campus police to take the lead on rape investigations, to a more objective policy, which would mandate universities simply refrain from conducting such judicial processes, is a small one. Under this proposal, students accused of rape or other criminal charges directly would be investigated directly by local police or be subject to suits by complainants directly. The university would then be discharged of the Title IX obligation to conduct its own trial and would provide a more equitable solution for both parties. Counterarguments One argument is that colleges must hear these sexual assault claims because they are obligated to ensure a learning environment free from sexual discrimination. While this obligation to maintain a safe and equitable learning environment is definitely valid, it does not follow logically to authorize institutions to investigate and prosecute the actual crimes. The OCR even recognized in a letter to the Buffalo State College that a school that immediately informs authorities of alleged criminal conduct and then simply cooperates in the investigation meets its obligation. 38 If a jury finds the accused guilty (after a fully impartial trial with procedural safeguards), the school can then take its own disciplinary action to ensure a safe learning environment. It is important to separate the obligation to avoid sexual discrimination from the requirement to adjudicate sexual assault claims. Much as with any other felony, universities simply cannot be empowered to play the roles of the police department and prosecuting attorney. Another argument is that because the consequences are not explicitly criminal, the procedures do not require due process protections. Some argue that these college hearings do not involve a constitutional loss of liberty as criminal trials do, so they should not be subject to due process protections. However, the substantial economic impact of losing access to a college degree because of suspension, expulsion, or negative notations on transcripts that could thwart admission into other programs is serious enough to warrant such protections. Education is vital for protecting one’s future and livelihood, and as such it must be defended at all costs. If the system is not fairly resolving such claims, then it cannot be considered legitimate to take away important liberties. A final argument is that these complainants would have little to no motivation to create untrue accusations of sexual misconduct. Critics argue that their complaints should be resolved as swiftly as possible to avoid placing additional burdens on the victims or causing them to relive any harmful experience. Sexual assault advocates argue that asking for the complainant to face the accused would be improperly traumatic for the complainant and that it would be even more harrowing for them to have to repeat and relive the experience. The problem with this argument is that it assumes the outcome (the truthfulness of the complainant’s words) without even giving the accused any semblance of an opportunity to challenge it. The only meaningful way to test such accounts of sexual misconduct is to allow both sides to hold hearings, question witnesses, share evidence, have access to lawyers, 37 TENN. CODE ANN. § 49-7-129 (2012) 38 Buffalo State College, OCR Complaint No. 02-05-2008 (Aug. 30, 2005)