Leonard Gross: The Right to Know Your Accuser

I am a law professor here at SIU but I write strictly on my own behalf and as chairman of the local chapter of the ACLU. I agree with Professor Bean that the proposed sexual harassment code does a very poor job of defining what constitutes various offenses. As a result, there is a risk that people will not have adequate notice of what is an offense.

I also am very concerned that the proposed sexual harassment policy does not accord accused individuals due process rights. Individuals accused of sexual harassment do not have the right to learn the name of their accuser. They do not have the right to cross examine either the accuser or any other witnesses. The right of cross examination is considered fundamental to our system of justice because it is believed that is the best way to learn the truth. Accused individuals do not even have the right to counsel. Furthermore, at the appeals stage, they do not even have an absolute right to present evidence on their own behalf.

This process contrasts sharply with the Judicial Review Board process (I am a JRB member). For grievances that are subject to the JRB, grievants can present evidence, cross examine witnesses and have the assistance of an advocate. The SIU Law School’s Honor Code also provides a better model. We pick a neutral outsider to conduct hearings to determine whether a student has committed an honor code violation. If a student is found to have committed an offense, a sanction is recommended but the final decision as to the appropriate sanction is up to the Dean. Students have the right to counsel, the right to cross examine witnesses and the right to present evidence on their own behalf. Discipline can be imposed only if there is "clear and convincing evidence," unlike the lower standard of "preponderance of the evidence" under the proposed sexual harassment code.

Individuals may rightly feel that the proposed process gives them so little opportunity to be heard fairly that they have no recourse but to resort to filing a lawsuit in federal court as Dr. Meyers has done.

Professor Leonard Gross