Sexual Assault Panel: Education with a Side of Indignation

Critics of colleges’ handling of sexual assault have been gaining attention lately (think Peyton Manning and Tennessee, the many allegations at Harvard College, or the breaking story about an Indiana University Title IX coordinator resigning because he was accused of sexual assault). Sexual assault on campus has been a real issue for a lot longer, and it’s refreshing to see genuine concern about this issue in the popular media.

Yesterday, I went to a Boston Bar Association Continuing Legal Education event, “Title IX in the Trenches,” to get the legal community’s perspective on this issue. The three-hour event invited prominent attorneys in the field to share their experiences and train their fellow attorneys on all aspects of the Title IX claim process.

We learned about the elements of these claims, which are adjudicated by schools according to their internal disciplinary procedures (shaped by Office of Civil Rights guidance like the 2011 Dear Colleague Letter). These internal procedures are not required to comport with all aspects of procedural and substantive due process, as the criminal trials that frequently parallel school investigations must, so preparing attorneys for this unusual quasi-litigation is important.

I have been working on these types of cases at the Victim Rights Law Center, which obviously represents accusers in these cases, so I might be a bit biased, but I found yesterday’s event very respondent-focused. I believe it is extremely important to put the safety of the victim of sexual assault first in the process, and let the rest follow from that, so perhaps this just was not the event for me.

Obviously, both sides need to be taken seriously, given the right to call witnesses and offer evidence, and heard in parallel or equal processes. I found, however, that the defense attorney panelists at the BBA event were concerned, above all, with the danger of “ruining the young man’s (rapist’s) life” or getting their client the minimum possible punishment, at the expense of the victim’s safety.

They are doing their jobs, I realize. But doing so by taking advantage of the inconsistencies so common with trauma, or or by bugging the victim’s friends on campus until she is shamed into dropping the case, crosses a line for me. Justice in campus sexual assault hearings doesn’t look like taking advantage of technicalities so a “promising” young man with the money for a good attorney can remain on a campus where his mere presence strikes disabling fear in the heart of the woman who had the “misfortune” of being too drunk at the time she was raped to be able to offer “credible” evidence of the event. This workshop appeared to advocate for just that strategy.

Now, don’t get me wrong — there are lots of wonderful panels at the BBA, and this was one of them. In fact, this one had several excellent speakers who attempted to provide a counterpoint to the rape jokes (really!) and trauma jokes (really?). They spoke about investigation strategies and the importance of thorough inquiries, and the differences between  collegiate and K-12 Title IX investigations, all of which fascinated me. I will be using the great resources they provided to assist my clients — and, hopefully, using those defense attorneys’ own strategies against them. The best defense against an offensive defense is a righteous offense, right?

(A quick plug for BU Law: They made it possible for me to join the BBA for free and arranged for me to attend this CLE for free. I couldn’t be more grateful for these kinds of connections.)

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