New Campus Rape Rules Sow Confusion Over Due Process

WASHINGTON - Sept. 22, 2017 - PRLog -- The Department of Education's announcement of new interim rules to apply to alleged sexual assaults on campus has sown some confusion among those advocating for the complainers, with comments implying that both the (usually) female accusers and the (usually) male accused should be entitled to the same procedural protections, but this betrays a fundamental misunderstanding of Due Process and the law, says public interest law professor John Banzhaf.

        Banzhaf, whose proposals in this area have featured in the New York Times, Chronicle of Higher Education, U.S. News, Washington Examiner, and National Public Radio, and whose compromise proposal was highlighted in Secretary Betsy DeVos' recent speech signaling these changes, notes that the Constitutional requirements of Due Process, which apply to every state school, and which have been held to apply to some private institutions, guarantee protections only for the accused, and not for accusers.

        This is true not just in criminal proceedings, but in situations where a professional's license is challenged because of alleged wrongdoing, someone faces eviction from public housing based upon allegations, and other non-criminal proceedings similar to those involving allegations of date rape.

        The Bill of Rights is designed to protect individuals from having things of value taken from them by government action, not to provide some kind of rough equality in contested proceedings.

        In campus tribunals, whether the claim is sexual assault, ordinary battery, or other alleged wrongdoing, the only one at risk of a serious loss (e.g., suspension or expulsion) is the person accused.

        Nothing the tribunal decides can undo any harm the complainant may have suffered, and the mere desire for retribution or justice is not constitutionally protected.

        This dichotomy is most clearly seen in criminal trials, where the accused is entitled to many procedural protections, and the accuser may at most have a say but not any rights regarding the charges brought, postponements granted, settlements and plea bargains, etc.

        Indeed, criminal proceeding may even go ahead contrary to the wishes of the complainant, and complainants may even be subpoenaed to testify against their will.

        To argue that the law, or even fairness, requires both accusers and accused to have the same rights and other procedural protections in any process designed to find facts and decide blame betrays a fundamental misunderstanding of the law, and of fact-finding processes, which have been the cornerstone of our legal system for hundreds of years, says Banzhaf.

        Moreover, if - as many impartial legal scholars have maintained, and DeVos has concluded - the so-called guidance letter was improperly if not illegally issued without going through the notice and comment procedure set out in the Administrative Procedures Act [APA], then it was appropriate if not legally necessary for DeVos to announce that "the era of rule by letter is over."

        Having made this determination, she could either leave campuses with no guidance whatsoever - under which they could revert to what they were doing (or not doing) before the letter was issued - or she can issue interim guidance until the rulemaking process is finalized.  The former may, especially from the point of view of complainants, be worse than the latter, argues Professor Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/  jbanzhaf3ATgmail.com  @profbanzhaf