New Sexual Assault Rules Tip Scales of Justice on Campus, Attorney Says

BOSTON, Sept. 7, 2011 /PRNewswire/ -- New standards for the resolution of sexual assault claims at colleges and universities run the risk of undermining due process for students accused of these heinous crimes, writes veteran higher education attorney Robert W. Smith in a column, "On Sexual Harassment and Title IX," published last week on the popular website realclearpolitics.com. Not only do the guidelines put unfair legal burdens on school administrations, writes Smith, a Boston-based partner in LeClairRyan and leader of the national law firm's Education Industry Team, but they also fail to recognize the complex and often-difficult realities involved in these cases.

"If the matter at hand is a minor traffic accident, a breakdown of due process might be unfortunate, but it would not be life-shattering for the party found to be at fault," writes the veteran attorney. "In matters as serious as rape or sexual harassment, however, due process, if anything, is more critical, not less. Any competent detective will tell you that these cases often reduce to 'he said, she said' arguments and involve complex questions relating to anonymity, racial bias, intoxication, subjective interpretation of sexual intent and behavior, and more."

Back in April, the U.S. Department of Education's Office of Civil Rights (OCR) issued a letter ordering colleges and universities to get more aggressive about investigating and prosecuting alleged incidents of sexual assault and harassment. But while the 18-page missive began with the cordial salutation "Dear Colleague," it was in fact a legally binding regulatory document that set new standards without ever making use of public hearings, comment periods or other important due diligence mechanisms, says Smith.

In the column, he notes that the letter calls for dropping higher evidentiary requirements in favor of the lesser "preponderance of the evidence" standard, and that this could tip the scales of justice toward plaintiffs in ways that undermine the rights of the accused. He also criticizes the letter's stipulation that colleges and universities resolve these cases within 60 days. "While I agree that justice delayed is often justice denied, the complex nature of an investigation into a sexual assault case does not admit of a neat resolution within 60 days," Smith writes. "Simply put, OCR's directive seems rooted in ignorance of the nature of these cases."

Officials from OCR frequently assert that one in five students on college campuses will become the victim of sexual assault. However, Smith questions these widely quoted statistics. "This would mean that our college campuses are now vastly more dangerous than the most crime-ridden U.S. cities," he writes. "Detroit recorded an average of 33 rapes per 100,000 people in 2006. DOE would have us believe that 200 sexual assaults will occur on a campus of just 1,000 people. Does DOE have evidence supporting this crime wave? If so, it should be released forthwith to law enforcement everywhere."

In concluding the piece, the attorney reiterates the seriousness of these cases and acknowledges that problems exist on American campuses. But the best way to deal with these problems is not to lower the burden of proof, he writes, but to ramp up criminal penalties and give law enforcement more tools and resources. Whatever OCR's intentions in drafting the letter, the way it was implemented has created serious questions about government officials' objectivity on these matters. "OCR's job is to enforce the law as passed by Congress by adopting and implementing appropriate regulations," Smith writes. "This is serious business and involves immense power and responsibility ... OCR should take a transparent and thorough approach to such issues, with the usual public hearings and calls for informed factual input by all concerned. However, what's done is now done. Unless successfully challenged at great burden and expense, the letter is, de facto, the law. Still, one is left to ponder the agenda behind it and whether justice truly has been served."

To read the full column, go to: http://www.realclearpolitics.com/articles/2011/08/30/on_sexual_harassment_and_title_ix_111065.html.

About LeClairRyan

As a trusted advisor, LeClairRyan provides business counsel and client representation in corporate law and litigation. In this role, the firm applies its knowledge, insight and skill to help clients achieve their business objectives while managing and minimizing their legal risks, difficulties and expenses.  With offices in California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has approximately 350 attorneys representing a wide variety of clients throughout the nation.  For more information about LeClairRyan, visit www.leclairryan.com.

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Robert Smith
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