Everyone knows the famous
Miranda decision requiring the accused to be informed of their rights. This decision became one of the keystones of modern liberal due process. If the accused is not informed of their rights, a police state may run rough shod over those
alleged to have committed crimes.
Forget
Miranda and all that "innocent before guilty" nonsense. Welcome to the wonderful new world of "Sexual Harassment Procedures." In the latest phase of obfuscating the rights of the accused, Southern Illinois University has produced a "Working Draft" entitled
"Sexual Harassment Complaint and Investigation Procedures." Since this is "comment period," here are my criticisms of the Not-So-New Procedures. For a full history of the events leading up to this point, read the following provocative posts:
http://freesiu.blogspot.com/search/label/sexual%20harassmentThe one by law professor
Leonard Gross is relevant here.
The criticisms that follow apply not only to Southern Illinois University Carbondale but to many (most?) college campuses. Hence the need for groups like
FIRE,
NAS, and certain ACLU chapters.
Silver Lining in SIU Procedures Draft:The SIUC draft streamlines the harassment procedures by channeling everything through an "Associate Chancellor." Got to give them credit for efficiency. This might help reduce the odds of double jeopardy.
Devilish Details:Let us move on to find the "devil in the details." A rigorous analysis of the draft uncovers
*the "guilty before innocent" principle,
*extreme preemptive action,
*vagueness concerning the "rights of the accused."
The rights of the
accuser are spelled out in great detail but when it comes to the accused ("Respondent") we find "not so much" information. If you accept the procedures at Guantanamo Bay, you'll love the approach taken here.
The Procedures state that the accuser:
"should include as much relevant information as possible, such as the name of the alleged victim, the name of the individual who allegedly violated the Policy (hereinafter “Respondent”), and a factual description of the incident(s) (including dates, times, places, and the names of any witnesses)."
This sounds good: full and complete information so that the accused might respond without being left in the dark, as has been documented in past horror cases at SIUC. But will this "full and complete" information be relayed in full to the accused? There are reasons to doubt anything has changed based on the following:
Verbal complaints allowed with no explanation of transcription process:
"Individuals are encouraged to make complaints in writing; however, written complaints are not required. Consistent with the University’s obligation to investigate complaints, and to the extent permitted by law, these records will be kept confidential."
Recommended Revision 1:
The procedures need to clearly state WHO and HOW verbal complaints will be recorded. There are always problems with oral statements, particularly when they can be changed, the person can be "coached," etc. Does any one recall the
Duke Lacrosse fiasco and the harm that did to Duke University? I recommend that all verbal complaints be taped (precedent for this with Judicial Affairs) and taken down in writing so that the accused may respond in his/her defense.
Recommended Revision 2:
Make clear that "confidential" does not mean "anonymous" accusations. Later in the document there is talk of redacting and providing only "relevant" information. This places the accused in a terrible position of not knowing WHO is accusing them, who is an alleged witness, etc.
Destroy Reputation, Finish Investigation Later:"if the Associate Chancellor finds it necessary to ensure compliance with applicable laws and/or University policies, he or she . . . may place the Respondent [accused] on temporary paid administrative leave, or otherwise temporarily bar such individual from campus pending the investigation . . . ."
Whoa! These preemptive strikes can devastate a person's reputation, even if the facts are later found to be "insufficient" (you are never declared "innocent," the facts are just "insufficient" to bear the charge!). Why do the Procedures jump to the "nuclear option" without offering milder, sensible alternatives such as a "restraining (or no-contact) order?" One reason, I suspect, is that a restraining order is impossible if the accused is kept in the dark as to WHO is accusing them!
Recommended Revision 1:
Lay out something short of an action that will destroy a person's reputation before there is a finding.
Recommended Revision 2:
Spell out that such drastic action will only be taken if the person constitutes a "clear and present danger" (or similar language).
Confidential Report: what does that mean?:
"Upon completion of the investigation, the investigator(s) shall prepare a confidential report of the findings and any recommendations, to the Associate Chancellor."
Again, does confidential mean that this report will not be made available to the accused? As I recall, this issue came up in the John Y. Simon case and incidents on other campuses.
False Reporting This is the only mention of "false reporting":
"disciplinary proceedings shall be conducted for violations of the Sexual Harassment Policy (including sexual harassment, retaliation, and false reporting)."
No definition of "false," no recourse for the accused, no consequences for frivolous or false reports, no reasonableness standard. Nothing, nade, zip. Accuse all you want because these procedures give the accused no recourse. The feminist upholders of sexual harassment justice will assert that "false reports" are "rare" and of no concern. Surely, however, they do occur and these procedures, by providing no recourse, only encourage false reporting.
Recommended Revision:
Define false reporting, lay out procedures for the accused to file a countercomplaint.
Rights of the Respondent:
"1. To be informed of the allegations against him or her
in a manner that will provide the Respondent an opportunity to respond;" (italics added).
Does "in a manner" mean full and complete disclosure of the complaint, investigation report, testimony of witnesses, etc.? It suggests something less than full disclosure.
Later in the report (p. 8), the draft states the Associate Chancellor will protect "the privacy of the alleged victim and witnesses" (does that mean they will not be revealed to the accused?). Privacy and anonymity are two very different things. The former keeps the process private within the confines of the university, the latter prevents the accused from knowing WHO is accusing them and who is witnessing against them.
On p. 8 there is further discussion of "redacted reports, documents and other materials germane to the investigation."
What will be redacted? This needs to be spelled out. If the names of the accuser, witnesses, etc. are redacted (the anonymity issue), then I am totally opposed to this illiberal proposal.
Disclosure to Third Parties:"Any documents . . . shall not be disclosed to any third parties, unless required by law." Translation: creating a leak-proof university? This became an issue at SIUC when one person allegedly provided information to a lawyer who then took action against the university. Does the above language prevent either party from disclosing documents to legal counsel in preparation for possible legal action? Or is this the ultimate CYA or shield clause for the university to hide its dirty laundry?
The irony is rich: our campus, like so many others, has witnessed criticism of George W. Bush, the Patriot Act, Guantanamo Bay procedures on the grounds that due process is lacking and the government shields itself from scrutiny. Yet here we are with procedures that bear an eerie resemblance to the Bush-era action.
Recommended Revision:The accuser must provide a complaint (to investigators) with names, dates, and witnesses. Why not simply state that the respondent has "the right to know his/her accuser," and a right to read the charges against him/her in full? We will hear the usual feminist objections that accusers won't be forthcoming if they know the accused will know them and their charges. But this is serious business when a person's life is at stake. Sexual harassment can harm the accuser but it can also have terrible consequences for the accused. Again, the incentives are structured to create an uneven field between the accuser and the accused.
Rights of the Respondent: Privacy"the privacy of the Respondent will be maintained." But what of those barred from campus? How can we square privacy with an action that clearly marks them with a Scarlet S (for sexual harasser)?
Public Reporting::
"The Associate Chancellor shall, at the end of each fiscal year, provide the number of complaints and the disposition of such complaints to the Chancellor and the offices of the Illinois Department of Human Rights and the Illinois Board of Higher Education, pursuant to State statute."
Will this information be public record? If so, where would one find it? If not, why not?
Investigators and Panelists (judges):There are procedures to make up a pool of investigators and panelists from "constituency groups."
Recommended Revision:Information personnel (sexual harassment advisers) are available to both sides and should not be eligible to investigate or serve as members of appeals panels. There is a conflict of interest between their role as impartial advisers and judges.
Before signing off, this post is more than "pissing in the wind." It often seems that the Harassment Establishment will engage in rituals nodding to due process while letting the substance dribble away in opaque "procedures." Those who criticize the
status quo are labeled (with some accuracy) PITAs (Pains in the Ass).
I take comfort in that I have offered not only criticism but suggested improvements to the draft.
I also take comfort in what George Orwell, one of history's great PITAs, wrote:
"Freedom is the right to tell people what they do not want to hear."
