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College-Picking Time: Talk with Your Child About Sex Offenses and Investigate Due Process

Tuesday, March 20th, 2018

It’s the time of year when high school seniors make college selections. Before picking, investigate how prospective colleges handle sex-related offenses and talk with your child about this issue.

This concerns the quality of due process on college campuses for students accused of sex-related offenses. “Due process” means the fairness to the accused of the process for adjudicating these charges.

It would be easy but unwise to dismiss this issue by thinking your child wouldn’t rape anybody. Most cases involve situations where the male claims sex was consensual while the female says otherwise. For example, in lawsuits, males have asserted instances of consensual sex were claimed weeks or months later to be nonconsensual when the female later saw the male with another woman.

Also, college sex-offense policies cover more than sex, such as unwanted touching and certain verbal comments, although most expulsion cases concern intercourse.

The quality of due process for such cases at colleges is poor. In 2017, the Foundation for Individual Rights in Education, known as FIRE, graded the top 53 universities as ranked by U.S. News & World Report on fundamental elements of due process in sex cases. No school received an A rating, 27 got D’s, and 15 got F’s.

U.Va. received a C. William & Mary got a D. No other Virginia schools were rated.

FIRE graded schools on 10 factors, including: is an accused student presumed innocent; will an accused receive adequate written notice of allegations; will the accused student receive adequate time to prepare for each phase of trial; are the factfinders required to be impartial; are accused students given a fair chance to introduce exculpatory evidence; are accused students given a fair opportunity to pose questions to witnesses and the accuser; may the accused student be assisted by a lawyer; is there a meaningful right to appeal a decision; and must the panel be unanimous in making an expulsion decision.

FIRE didn’t consider the standard of proof. The vast majority of colleges use the “preponderance of the evidence” standard, meaning that, to find a student guilty, a factfinder only has to determine it’s over 50 percent likely an offense occurred. In criminal trials in our court system, the Constitution requires proof beyond a reasonable doubt.

Unfortunately, no organization has rated the sex-offense due process rules at other Virginia universities.

You could try evaluating that yourself by reading on a school’s website its policies on what constitutes a sex-related offense and what the adjudication procedures are. Good luck with that.

I’ve tried. The policies are hard to find. They often are spread over multiple webpages that are not grouped together. They often refer to defined terms and other policies that are elsewhere.

This isn’t a hypothetical problem for Virginia universities. George Mason University, James Madison University, and Washington & Lee each have been sued by expelled students. In each case, a federal judge found the student’s lawsuits alleged serious failures of due process. Each case was settled confidentially after those universities failed to get the lawsuits thrown out.

The chance your child will get prosecuted is small but the stakes are high. For example, at U.Va. during the 2016-17 school year, only 18 cases went to a review panel and only three students were expelled.

At the University of Richmond from 2013 to 2017, 26 students were charged with sex-conduct violations. 19 were convicted, but only seven were suspended or permanently expelled.

But, if a student is convicted of a sex offense, it will be recorded in the student’s college record. That will make it difficult to transfer to another school and may have a huge impact on that person’s career opportunities.

As a parent, what can you do?

• Try to find and read the school’s policies on what constitutes a sex offense and the disciplinary procedures.

• Talk with your child about what kinds of conduct the school considers to be a sex offense and how alcohol use can cause problems. Some things may be offenses that are not obvious to your child or even to some adults.

• Search the Internet for reports of any lawsuits or complaints about how the school treats students accused of offenses.

• Tell your child to call you at the first sign of any accusation. These proceedings can move fast, and the accused student is often given little advance notice.

Most important advice – hire an attorney immediately. This attorney should be experienced in the campus disciplinary processes at your child’s school.

• Do not go into the process and then seek legal help only when things go badly. It may be too late to salvage the situation.

• The attorney you hire will advise you in more detail but, until that occurs, keep everything that might constitute evidence, such as pictures, texts, emails, voicemails, and social-media messages. Keep detailed written notes of everything regarding the alleged offense and regarding the process as it unfolds.

Hopefully your child will have a wonderful college experience, behave well, and not incur any accusations. But it’s better to be prepared than sorry.

Written on March 20, 2018

by John B. Farmer

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