Brett Kavanaugh and Christine Blasey Ford, Joe Biden and Tara Reade, and college Title IX complainants and respondents all have one thing in common: participation in their investigation of sexual assault allegations was or is voluntary. All of the people involved have the freedom to provide information or not, and only the information they choose. As a result, important pieces of evidence—exculpatory or inculpatory—may never be known by the decisionmakers or the public.
A recent North Carolina Supreme Court ruling creates one more commonality—press coverage. The names of UNC college students found responsible in Title IX proceedings will now have to be released to reporters upon request. Regardless of whether all the facts came to light or not.
When decisions are based on incomplete information, it is hard to trust the results. We know this to be true when making financial decisions or in determining whether ordering takeout is safe during the COVID-19 crisis. Determinations of guilt or innocence in sexual assault allegations are no different. When you don’t know the facts, you can’t answer the question of guilt or innocence.
While criminal trials do not always result in the right outcome, courts do hold the power to compel witnesses and the production of evidence. Contrast that to the Kavanaugh hearings, where Mark Judge choose not to testify, and Dr. Ford did not turn over her therapy notes. Similarly, Mr. Biden has refused to release his private papers held at the University of Delaware, and Ms. Reade has not had to answer tough questions. This same unwillingness to participate and the withholding of critical evidence happens routinely in college Title IX investigations.
One of the hallmarks of a Title IX investigation, that will not change when the new regulations go into effect, is that the process is voluntary for all students. There’s no requirement to be interviewed or provide all relevant social media postings. Investigators, who really should be called fact gathers, typically fulfill their obligations by taking notes on what students offer to share with them, not seeking out information which students might be withholding. Reinforcing the laissez faire nature of the process, schools do not penalize students for selectively providing evidence or withholding exculpatory information. The goal is to satisfy the school policy, not to get to the truth.
Here are a few examples of the types of information that investigators are often not given by students: a negative drug test result for a student complainant who alleges to have been drugged; the item which a complainant alleges was used to injure them; phone logs which demonstrate the student alleging harassment is actually the harasser; the straight “A” report card for a student who claims the trauma caused them academic harm; and a witness’s text messages showing a student knew the other student was incapacitated at the time. There is no mechanism to ensure relevant information becomes part of the record.
That’s the nature of the voluntary process—it’s a good enough process—dependent on the motivations of the people involved. Factfinders are left to make imperfect decisions based on incomplete evidence. Title IX cases are decided on what is willing provided, not on the evidence that should be considered or that would be part of a criminal investigation.
The new regulations are an encouraging step forward. However, it’s important that the new safeguards don’t lead to an overreliance on school findings—college misconduct decisions—which are not synonymous with criminal liability.
The North Carolina Supreme Court decision effectively paves the way for the press to place these college students on an unofficial sex offender list for life—a Scarlet Letter that can’t be removed, erased, or easily explained. Because, unlike when public figures are involved, reporters will rubber stamp outcomes, not investigate the underlying case.
College decisions should not be printed as if they’re an accurate, or even beyond a reasonable doubt, finding based on a rigorous and robust investigation. Because nothing could be farther from the truth—just like some Title IX outcomes.
May 18, 2020