Newsletter: Should Courts, Not Campuses, Decide Sexual Assault Cases?

ARGUING YES

Jed Rubenfeld
Professor at Yale Law School

ARGUING YES

Jeannie Suk
Professor at Harvard Law School

ARGUING NO

Michelle Anderson
President of Brooklyn College;
Former Dean of CUNY School of Law

ARGUING NO

Stephen Schulhofer
Professor Emeritus at the
NYU School of Law

Here is what we have in store this week:

• We debate whether campus investigations of sexual assault are doing enough to help protect students — or if courts could bring more justice

• Your Sunday reading list

A lawsuit in Connecticut caught our attention recently. A man is suing a woman for defamation after she accused him of rape. He was acquitted in a criminal trial. But his suit addresses what happened and what was said at a disciplinary hearing held by Yale University, where he was a student and from which she had graduated. At that hearing, he was, in effect, found guilty, and Yale expelled him.

As reported by the New York Times, it was the inherent lack of due process at the Yale hearing that has put legs under this lawsuit, especially Yale’s refusal to allow cross-examination of witnesses by the man’s lawyer. As the Times reported, the case has “complicated an already electrified debate over how colleges handle allegations of sexual assault on campus in a way that is fair to both parties.”

Indeed, this debate is “electrified,” which I know because we addressed it head-on. The question we ask is “Should Courts, Not Campuses, Decide Sexual Assault Cases?”

Our four debaters approached this sensitive topic with respect for all parties involved, especially the victims. But they also examined, in good faith, what guidelines are required to ensure the rights of the accused.

We did this one a while ago, but it turns out to be even more relevant today and is well worth a listen.

Sincerely,
John

POINT/COUNTERPOINT

Should Courts, Not Campuses, Decide Sexual Assault Cases?

YES:

“As the result of campus sexual assault trials, actual rapists all over the country are going free to rape again while innocent people… people who haven’t committed any sexual assault at all, are being found guilty and having their lives wrecked by an error-ridden, unreliable process that’s filled with conflicts of interest and violations of due process, all of it covered by a thick layer of non-transparency.”

Jed Rubenfeld

YES:

“Criminal sexual conduct anywhere deserves a criminal response, and our opponents want you to accept that a civil rights option means that it’s okay to have lesser procedures… those do not necessarily go hand-in-hand with an investigation and adjudication, a decision about the responsibility and guilt of a party for committing a crime. You can take safety measures and campuses do all the time without having pseudo-criminal trials. Campuses should not do shoddily what our courts have been designed over generations to do.”

Jeannie Suk

NO:

“There’s a reason why 95 percent of sexual assault victims on campus never report to the police. They do not believe that justice will be served. The fact is that bias against victims of sexual assault has a well-documented 200-year history in the criminal justice system. But even when the system harbors no bias whatsoever, campuses must be able to decide sexual assault cases.”

Michelle Anderson

NO:

“What people are missing here is that sending all these cases to the criminal courts is going to work out very badly for the accused students as well. The resolution seems to assume that a criminal conviction requires very clear proof. The reality is actually not so reassuring. Victim testimony no longer requires any corroboration or any proof of physical coercion. If the complainant testifies that she said no and the jury believes her, that’s enough. That is proof beyond a reasonable doubt.”

Stephen Schulhofer