Prof: campus sex trials like 'European inquisitorial system'
Campus sexual assault trials conducted under Title IX mirror the “European inquisitorial system” of criminal justice, according to a recent academic article.
Elizabeth Kaufer Busch, a professor of American Studies at Christopher Newport University, made the claim in a July 28 article in the journal Perspectives on Political Science, where she details the evolution of Title IX since it was made law in 1972.
Citing the Department of Education’s Office for Civil Rights (OCR) 2011 Dear Colleague Letter, which mandates the use of the “preponderance of evidence” standard (a greater than 50 percent likelihood of guilt) in campus sexual assault trials, Busch argued that trials conducted under this system bear “more similarities to an inquisitorial system of justice than to a constitutional one.”
Under the judicial system present at many American universities, due process protections such as the right to cross-examine one’s accuser or a right to a lawyer have yielded to a victim-centered approach, Busch explains.
According to Busch, while the Department of Education’s Office for Civil Rights argues that the “sensitive nature of sexual assault requires that the system ought to favor the needs of the victim,” she thinks this “exception to traditional criminal proceedings sets a dangerous precedent.”
Fair trials are important for accused students because the stakes are high. Consequences that arise from a finding of “guilt” are long lasting, Busch writes, noting that “[e]xpulsion could have lifelong implications for the student,” who “may be unable to attend school elsewhere.”
In an interview with Campus Reform, Busch explained that her interest in Title IX stems from her interest in feminism. Her research focuses on the evolution of feminist theory “from an enlightenment doctrine to an empowerment doctrine, and the unintended consequences of that.”
She explained that the recent consequences seen in Title IX trials, such as a weaker standard of evidence, can be attributed to OCR appointees who make regulations (such as the 2011 Dear Colleague Letter). While these regulations don’t exactly have “the force of law,” colleges are nonetheless compelled to comply with them, lest they risk losing federal funds.
But these OCR appointees are not lawmakers in Congress, Busch explained. “When you have someone without lawmaking experience…who doesn't have the legitimacy of being elected…some unintended consequences can result.”
“The 2011 Dear Colleague Letter is a prime consequence of that,” said Busch.
While Busch has no doubts that OCR appointees are well-meaning, she stressed the importance of using Congress to make laws instead.
Using Congress to pass new laws would be preferable, Busch added, because unlike OCR guidance, laws inaugurated by Congress have more permanency. Without the backing of Congress, “legislation by fiat” is much more tenuous.
“The next administration could come in and wipe it out,” Busch concluded.
Follow the author of this article here: @Toni_Airaksinen