Are Colleges Adequately Protecting the Rights of the Accused in Campus Sexual Assault Cases?

The American College of Trial Lawyers (ACTL), based in Irvine, California, recently released a new report on campus sexual assault investigations. The introduction to the report says that the American College of Trial Lawyers “believes in the importance of protecting all students from sexual misconduct and ensuring that they are provided an educational environment free of sexual harassment. ACTL also believes that it is important to ensure that students investigated for, or charged with, sexual assault or misconduct violations be afforded basic fairness and due process.”

The ACTL lists seven standards that it thinks should be applied for investigations of sexual assaults on college campuses.

1. Sexual misconduct investigations and hearings should be conducted with due consideration for any appearance of partiality, including that which might arise from the factfinder’s other responsibilities or affiliations.
2. The subject of a sexual misconduct investigation should promptly be provided with the details of the allegations and advised of his/her right to consult legal counsel.
3. The subject of a sexual misconduct investigation has the right to be advised and accompanied by legal counsel at all stages of the investigation.
4. The parties to a sexual misconduct investigation should be permitted to conduct some form of cross-examination of witnesses, in a manner deemed appropriate by the institution, in order to test the veracity of witnesses and documents.
5. The subject of a sexual misconduct investigation should be provided with access to all evidence at a meaningful time and in a meaningful manner so that he/she can adequately respond to it.
6. The standard of proof for “responsibility” should be clear and convincing evidence.
7. Factfinders in sexual misconduct investigations and hearings should produce written findings of fact and conclusions sufficiently detailed to permit meaningful appellate review.

The full report, White Paper on Campus Sexual Assault Investigations, may be downloaded here.