Is Senator Kirsten Gillibrand Grandstanding At The Expense of Due Process?

Dianna Thompson and Cynthia Garrett Advocacy Committee, Families Advocating for Campus Equality
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Those concerned with the continued dismantling of campus due process protections were cringing at Senator Kirsten Gillibrand’s (D-NY) decision to invite Columbia University senior Emma Sulkowicz to accompany her to the State of the Union address. Ms. Sulkowicz gained attention last year for carrying around the mattress upon which she was allegedly assaulted by another student.

Senator Gillibrand’s decision to enlist Ms. Sulkowicz’s support for her Campus Accountability and Safety Act is perplexing because, although Ms. Sulkowicz’s narrative has become legendary and she has received numerous awards as a media darling, Sulkowicz’s claim that she was violently raped, or that the university mishandled her case is subject to debate. The truth is that Columbia conducted an investigation of Sulkowicz’s accusations and afforded her a hearing during which she was required to prove her claims were “more likely than not” true, or by a preponderance of the evidence — the lowest possible standard of proof which is, effectively, little more than a coin toss.

In the current political climate with nearly 100 colleges and universities being investigated for mishandling sexual assault allegations and the threat of loss of federal funding as an incentive to carefully adjudicate these cases, the fact that Columbia’s tribunal was unable to substantiate Sulkowicz’s allegations should, like her mattress, be given substantial weight.

Ms. Sulkowicz was unhappy with Columbia’s decision, so she has mounted a campaign of revenge, forever maligning the reputation of the young man who has been cleared of these charges. Sulkowicz’s relentless campaign does not prove her accusations, and they should not be treated as true by legislators attempting to gain support for their political objectives.

By inviting Ms Sulkowicz to accompany her, Senator Gillibrand undoubtedly wanted to send Congress the message that passage of her proposed Campus Accountability and Safety Act is necessary to protect students in their college environments. However, in her effort to push through the bill, Senator Gillibrand not only is willing to use a dubious victim, Gillibrand is also willing to use discredited and out of date statistics and unsubstantiated data.

For example, Senator Gillibrand’s website claims that “Currently, a woman in America who attends college is more likely to be a victim of sexual assault than one who does not attend college.” This is not accurate and there is no excuse for Senator Gillibrand’s blatant disregard of the most recent U.S. Department of Justice’s (DOJ) survey, published in December 2014, which shows that “nonstudents in the same age group are subjected to sexual assault between 1.2 and 1.7 times more frequently than are college students.

Thankfully, Senator Gillibrand’s website recently deleted reference to the much criticized and now discredited National Institute of Justice 2007 Campus Sexual Assault Study, which purportedly established that one in five college students would be sexually assaulted during their college career. Instead, the December 2014 DOJ report found that the rate of rape and sexual assault for college students is actually, “6.1 per 1000, or less than 1 out of 100 students per year” and DOJ’s estimates include assaults not reported to law enforcement.

Campuses have been scrambling to correct their previous unresponsiveness to sexual assault allegations since the U.S. Department of Education’s Office for Civil Rights (OCR) issued its 2011 “Dear Colleague Letter,” which dictates how every private and public college and university in the country receiving federal aid must investigate, adjudicate and report alleged incidents of sexual assault involving their students. Although OCR’s directives do not have the force of regulations, campuses comply with them because of OCR’s threat to withdraw funding for noncompliance.

In the recent Boston Globe opinion piece entitled “Rethink Harvard’s sexual harassment policy,” written by twenty-eight Harvard Law professors, they warned that OCR’s directives “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”

OCR’s mandates have contributed to a confluence of factors resulting in the tendency toward false guilt findings in campus adjudicatory processes. These factors include OCR’s requirement that campuses lower the standard of proof to a “preponderance of the evidence” when determining guilt. This lowest possible standard of proof, which requires a mere 50.01% certainty, is traditionally restricted to matters in which money is at issue, not reputation, quasi criminal behavior, access to higher education or future employment prospects.

Another factor contributing to the likelihood of guilty findings is the denial of fundamental procedural due process protections in campus adjudicatory processes, which offset the risk of error stemming from the lower standard of proof. This means there are no evidentiary rules, no discovery, no cross-examination and the like. To make matters worse for accused students, campus definitions of “sexual assault” now are so broad that they convert perfectly legal activities into “sexual assault” on campus, even when engaged in by adults. And in the current climate, in order to protect their employers from OCR sanctions adjudicators seek to report a higher number of sexual assaults to OCR.

Why is the possibility of false accusations being ignored? Perhaps because the general consensus is that false allegations are rare or nearly nonexistent. Unfortunately, a 1996 report funded by the National Institute of Justice found that “in about 25 percent of the sexual assault cases referred to the FBI … the primary suspect has been excluded by forensic DNA testing.” Similarly, a nine-year study of a small metropolitan area in the Midwestern United States found that 41 percent of rape accusations were false. Since inexperienced campus tribunals are adjudicating sexual assault accusations with no procedural safeguards and without gathering or testing evidence such as DNA, how is it possible that the rate of false allegations on campuses could be lower than that discovered through DNA testing? More importantly, how many innocent young men will be expelled and their futures devastated before Senator Gillibrand, her cosponsors of the Campus Accountability Safety Act, and Congress pay attention?

No one doubts that sexual assault on college campuses needed to be addressed. But it is critical that our representatives in Congress rely on credible statistics and substantiated data when drafting legislation with the potential to destroy lives. The truth must always be the starting point for and the foundation of legislative proposals and public relations campaigns.

Dianna Thompson is the Director of Stop Abuse for Everyone and a member of the Advocacy Committee for Families Advocating for Campus Equality.  She can be reached at dthompson2232@gmail.com. Cynthia P. Garrett, Esq. is on the Board of Directors and the Advocacy Committee Director for Families Advocating for Campus Equality. Their website is www.facecampusequality.org