Fair Process and Sexual Misconduct on Campus

Abstract

Pressured by directives from the Obama Administration's Department of Education, colleges and universities across the country scrambled to revamp their processes of adjudicating sexual assault on campus. Critics of the new campus sexual misconduct codes charge that the rules are now unfairly biased against those charged with offenses. Two recent developments – the election of Donald Trump, and the arrival of the #MeToo movement – have substantially shifted the political and social ground upon which the new sex misconduct codes were created. Pressed now from advocates of due process, schools must give careful thought to the question of what fairness means in the context of adjudicating sexual misconduct in the campus setting. In deciding their response, colleges and universities should not reflexively defend misconduct codes which were themselves hastily assembled in response to controversial mandates from the government. Instead, they should acknowledge that sanctions imposed on offenders in these cases operate as punishment, and look to the Criminal Law – the law of individual punishment – as a model for mediating the competing claims of justice which fight for dominance in these cases. Campus sexual assault adjudications are not criminal trials, and criminal procedure cannot be wholly imported into such adjudications. But campus proceedings should be motivated by the core principles – of Harm, Proportionality, and Parsimony – which have produced our social system of punishment. College sexual misconduct codes lack a coherent set of principles upon which to ground the structure of sexual assault adjudications; such principles do ground the criminal process and should serve as a model for other forms of institutional punishment.