Penn Law profs. oppose new sexual misconduct investigative procedures

On Feb. 18, nearly one-third of the Law School’s tenure or tenure-track faculty published an open letter criticizing the new sexual violence investigative procedures instituted by the University on Feb. 1. The letter argues that the new policy does not provide due process and leaves students accused of sexual misconduct at risk of being found wrongfully responsible.

The new policy was adopted under pressure from the U.S. Department of Education’s Office of Civil Rights to institute stronger disciplinary and investigative procedures for sexual assault allegations. However, the 16 Penn Law signatories fear that the new procedures infringe upon the rights of the accused.

One of the main issues the letter raises is the low standard of evidence the new investigative process allows. If a sexual assault is brought to a hearing after the investigation, the person hearing the case need only be over 50 percent sure that a respondent is guilty to punish him or her. This preponderance-of-the-evidence standard, or “more likely to be guilty than not,” is the lowest standard of evidence in our legal system and is typically seen in civil disputes, said Mitchell Berman, a Penn Law professor and letter signatory.

“Criminal law has a very heightened standard of proof, called ‘beyond a reasonable doubt,’” Berman said. Criminal justice procedures utilize this higher standard because of the belief that “while it is bad if the jury says you’re innocent when you’re guilty and it’s bad when they say you’re guilty when you’re innocent, that second mistake is much worse.”

The letter expresses that this lower standard of proof is especially problematic when combined with the majority-rules process of the disciplinary hearing that follows the investigation. The new system uses a hearing panel that consists of three people drawn from the University faculty to decide the outcome for the respondent. A 2-1 vote determines whether the respondent is found responsible or not.

“I think that the requirement should be unanimous,” Penn Law professor and letter signatory Stephen Burbank said. “I would certainly be less bothered by the non-unanimity requirement if there were a higher standard of proof.”

The letter also raises the point that that the Penn process does not allow for cross-examination during the hearing process, although the Department of Education does not forbid this practice, said Penn Law professor and letter signatory David Rudovsky. “We think that Penn could have provided significantly more due process than it does and still be compliant with what the DOE has mandated.”

“An essential tool in determining the truth is cross-examination,” Rudovsky added.

However, Claire Finkelstein, a Penn Law professor and Faculty Senate chair who helped shape the new procedures, said that the procedure allows for a modified version of cross-examination in which both parties can submit written questions to the hearing panel. “The Office of Civil Rights has been extremely discouraging of cross-examination in these proceedings, because the history has been that the complainant has been very harassed, and the fear has been, rightly or wrongly, that this discourages the potential victims of sexual assault from coming forward.

“The concept of due process does not apply to a campus disciplinary hearing,” said Finkelstein, who did not sign the letter. “Reasonable minds can differ over the usefulness and appropriateness of cross-examination in a campus disciplinary hearing.”

Penn Law faculty member Anita Allen said she declined to sign the letter because she did not feel that it was appropriate given her role as the vice provost for faculty. The newly appointed Sexual Violence Investigative Officer, Christopher Mallios, declined to speak with The Daily Pennsylvanian regarding the accusations posed in the open letter. However, Ron Ozio, director of media relations for the University, said in a statement, “We developed a process that we believe to be fair and balanced, that will both provide a sensitive and effective process for those wishing to make a complaint, while actively protecting the rights of the accused.”

All of the faculty members interviewed emphasized that prevention is key in the culture surrounding sexual misconduct — a point also made in the letter.

“Adequate procedures are very important,” Burbank said. “But in my view, they are not nearly as important as reducing the incidents of the problems that lead to these proceedings in the first place.”

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