Part 3: How to Fix On-Campus Sexual Misconduct Investigations

In an interesting development since my last blog post, the University of Michigan has ratified a revitalized sexual misconduct policy that, in part, is aimed to overcome some of the democratic failures that plagued its predecessor. The salient feature in the new policy is that the accused or accuser can appeal the University’s ruling in any given sexual misconduct case to an independent arbitrator. While this revised protocol certainly serves as an upgrade over the University’s previous policy, it is still insufficient in the grand scheme of upholding the democratic tradition of punishing violators of the law.

By introducing the possibility for third-party intervention, the University is at least acknowledging some of the common criticisms of on-campus sexual misconduct investigations (some of which I touched on in my previous blog): potential bias/conflicts of interest, unstandardized detective methods, lack of forensic resources, etc. Despite the caveat that the University still reserves the right to ultimately override the arbitrator’s ruling, this new policy at the very least allows for the capacity of much-needed outside, independent help.

The problem never really was rooted University’s sexual misconduct policy, though. No matter how the University enforces or alters its policy, the fact of the matter is that it is still not fit to act as a civil court during sexual misconduct investigations. Through no fault of its own, the University (as are all publicly-funded colleges across the country) is mandated by Title IX to act as judge, jury, and executioner when a student reports a case of sexual misconduct to administration. This helps to explain the startling statistic that a mere seven of 25 University-sanctioned investigations into sexual assault during the 2015 calendar year yielded formal sanctions against the accused; barely an improvement from five in 2014. The right people are not investigating these types of crimes, which in turn cultivates the democratic failure of criminals going unpunished. If the answer to this problem seems relatively obvious, that’s because it is: turn over these investigations to police.

FIRE Vice President Robert Shibley

This is far from some radical concept. Robert Shibley, an attorney and Vice President of the Foundation for Individual Rights in Education (FIRE) wrote at length about this very proposal in a 2014 Time editorial titled “Time to Call the Cops: Title IX Has Failed Campus Sexual Assault”. Mr. Shibley was kind enough to expand on the points he made in his article during an email exchange with me.  “FIRE supports involving the police in all allegations of illegal sexual misconduct. Students who are suspected of having broken the law should be treated the same way non-students are treated,” he told me. “There is no reason that a 19-year-old in college should face fewer consequences for his or her illegal actions than a 19-year-old who did not have the opportunity to attend college. Further, the correct people to investigate crimes are law enforcement professionals, not amateurs on campus whose interests may lie with the serving the university more than with justice.”

A more specific proposal, piggybacking off of the necessity of police intervention, is rewriting Title IX in a way so that schools’ respective boards in charge of investigating claims of sexual misconduct are given discretion to immediately turn over a case to the police, if deemed serious enough. This way a school can still handle certain matters internally, but law enforcement can also be called upon at a moment’s notice. Such a revision would have to come from the federal government, but individual schools should lobby for it if they truly have the best intentions for their students at heart.

Ta-Nehisi Coates

Of course, this proposal prompts questions of its own. What is the threshold for determining when a case gets turned over to police? Can a school’s board be trusted with said determination? Don’t police investigations have flaws of their own? However, as Ta-Nehisi Coates reminded us in “The Case for Reparations”, letting certain logistical questions impede legislative proposals is an injustice in its own right. Much like Coates believes John Conyers Jr.’s HR 40 bill would be a vital first step -- despite its lack of addressing perceived impracticalities -- in the movement for reparations for slavery, I believe my proposed change to Title IX would at the very least foster discussion about how to fix a fatally flawed system.

That’s all I got, folks. I hope by now it is clear that the reason sexual assault investigations at Michigan -- and across the nation -- are often so controversial and messy is because the cases are not being investigated by the right people. Fixing Title IX to allow for a bigger role for law enforcement in on-campus sexual misconduct investigations at least theoretically would bring more criminals to justice, thus better upholding a key Lockean democratic pillar: punishing offenders of the law. Thank you so much for reading!










Works Cited:

Jesse, David. "University of Michigan revamps sexual misconduct policy." Detroit Free Press 6 Apr. 2016: n. pag. Freep.com. Web. 13 Apr. 2016. <http://www.freep.com/story/news/local/michigan/2016/04/06/university-michigan-revamps-sexual-misconduct-policy/82712486/>.

Shibley, Robert. "Time to Call the Cops: Title IX Has Failed Campus Sexual Assault." Time 1 Dec. 2014: n. pag. Web. 13 Apr. 2016. <http://time.com/3612667/campus-sexual-assault-uva-rape-title-ix/>.

Coates, Ta-Nehisi. "The Case for Reparations." The Atlantic. N.p., June 2014. Web. 13 Apr. 2016. <http://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/>.