Op-Ed

Why it's unfair for colleges to use outside investigators in rape cases

In recent months, public attention has focused on campus sexual assault like never before. As a result, the way that colleges and universities handle rape allegations is evolving rapidly.

Some of these reforms are good — students should have ready access to counseling and support services, and colleges should have conversations with their students about the norms of consent on campus. But as lawyers who have represented dozens of accused students nationwide, we believe that many of these changes are warping traditional ideas of due process. One especially worrisome development is the move by schools to use outside investigators to decide cases.

We're sympathetic to school administrators, who are in a no-win situation. Finding a student responsible for sexual assault may ruin his life — most of the accused are men — and put the school at risk of a lawsuit. Finding a student not responsible can result in an expensive inquiry from the Department of Education — currently 124 schools and counting — a Title IX lawsuit, or public shaming along the lines of what happened to Columbia University when one of its hearing panels exonerated Emma Sulkowicz's alleged assailant. Hers was the mattress seen 'round the world.

To protect themselves, a growing number of schools, including Harvard, Dartmouth, the University of Michigan and Boston College, are turning to the “single investigator” model — or as we call it, after Victor Hugo, the “Inspector Javert” model. They outsource the entire investigation and, increasingly, the ultimate decision about whether there was a sexual assault, to a single hired gun. Once the outsider decides there was a rape, the school takes the case back and imposes a sanction — frequently expulsion. Although the student may appeal the decision, reversals are hard to achieve. (Colleges don't make statistics available, so we're basing that judgment on our professional
experience.)

The Javert model is perfect for schools hoping to avoid liability. It's decidedly less perfect for accused students.

These investigations are often run by former campus police officers or former sex-crimes prosecutors. They have dedicated their careers to uncovering wrongdoing, so it's only natural that they will tend to view every fact through a prism of guilt.

Worse, these outsiders are not actually independent; they are looking for repeat business from deep-pocketed universities, and they know that it's cheaper and easier for schools to deal with a lawsuit from an expelled student than a federal investigation, a Title IX lawsuit and a public attack.

The incentives are clear and they do not favor the accused.

An accused student, moreover, has no meaningful chance to challenge the evidence against him. He isn't even allowed to ask a witness a question that didn't occur to the investigator who, again, isn't motivated to zealously scrutinize allegations.

Yet more extreme: An accused student often never sees the actual evidence against him — verbatim transcripts or recordings. Instead, Javert may give truncated witness summaries to the student and ask for input before a final decision is entered. But witness summaries are to witness interviews what CliffsNotes are to books, and they are drafted by an investigator who has every incentive to minimize exculpatory information.

A hearing model — in which three people drawn from the university community review evidence and hear live testimony — is far from perfect. The panelists are often poorly trained and are too quick to believe the more sympathy-inducing party, which is almost always the accuser. Neither side is given any real power to challenge the evidence. They are, in short, often kangaroo courts.

But virtually every client we've represented would still take a kangaroo court over Javert. Campus sexual assault cases turn entirely on the credibility of the witnesses. Even a bad hearing allows the accused to find out what's being said about him and provides some small way to explain why it isn't true. In the Javert model, everything happens behind closed doors.

Fairness, you see, isn't the point of the Javert model. It shields a college from liability and bad publicity. It gives a college cover with the Education Department. It handsomely rewards the investigators who make money from it. And it's predictable. In our experience, Javert finds what virtually everyone involved in this process — except the accused — wants him to find. No one ever said Javert was bad at his job.

Justin Dillon and Matt Kaiser are partners at Kaiser, LeGrand & Dillon in Washington and have represented dozens of students nationwide in campus sexual assault cases.

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