On this, Laura Dunn is absolutely right. Dunn is a lawyer and executive director of SurvJustice, a “survivor legal advocacy group.” Her job as ED isn’t to be fair, or even right, but to do everything in her power to further the goals of the organization. And so she tried:
Dunn criticized other FIRE proposals, such as the “clearly stated presumption of innocence.”
“A presumption of innocence advantages the accused only, and Title IX requires equity,” Dunn wrote in an email. “No presumption should be made either way, and schools should engage in an inquisitorial process to determine the truth rather than artificially favor the accused going into it.”
Dunn also wrote that she “100 percent” disagreed with a student’s right to have an attorney present.
“This is not court,” she wrote.
At first blush, this sounds absolutely outrageous, but squint a little and maybe she’s got a point. College tribunals are not a court proceeding, but an administrative proceeding. If they’re subject to federal law, as most are, then they must provide minimal due process as necessitated by the circumstances of the case before them. This is about as vague as it gets.
For most, the notion that there should be no presumption of innocence for an accused is facially absurd, but then, the presumption applies in criminal prosecutions. This isn’t a prosecution, not because the determination doesn’t have all the attributes of a prosecution with essentially none of the protections, but because it’s a college tribunal employing administrative law to reach its verdict. This is not court.
Does the presumption of innocence favor the accused? Absolutely. It puts the burden on the accuser to prove by a preponderance of the evidence, another highly controversial dictate, that the conduct complained of occurred. Dunn’s point here is that in a usual non-criminal proceeding, neither side comes in with the benefit of the presumption. There is still a burden of proof on the party seeking a remedy, but the sides are otherwise on equal footing. In a criminal proceeding, the Constitution imposes the presumption, which allows the accused to remain silent and compels his accuser to prove his guilt.
And that’s the problem. The impact of a few “trained” humanities profs concluding that a guy is a rapist is, without question, punitive. He loses his tuition for the years spent in college, plus his opportunity costs. He will be officially marked a sex offender on his transcript, precluding his going elsewhere to complete his education. The years of his life dedicated to his future will be rendered worthless. No, he won’t be imprisoned, but the punitive costs will be huge, possibly far higher than a criminal judge could impose.
Dunn’s premise relies on the assumption that Title IX mandates that colleges engage in this exercise of protecting students from sexual assault. There is a strong emotional appeal to this assumption, and under the dictates of the Lhamon Office of Civil Rights regimen, there was putative support for the assumption. Upon that foundation was built a system of adjudication that was barren of due process. Advocates have tried to tweak it around the edges for years now, but it was a tepid effort.
There is a foundational problem that Dunn grasps and too many on the due process side refuse to recognize. This is not court. And the response to Dunn’s fully accurate assertion is that people’s lives should not be ruined except by a court. This is not court. It should be. If reason prevails, this will be the means by which the very serious offense, and accusation, of sexual assault is determined for everyone, college students included.