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ABA Task Force Studies Due Process in College Sexual Misconduct Cases

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By William Vogeler, Esq. on January 19, 2017 2:55 PM

The American Bar Association has formed a new task force to study due process rights in college sexual misconduct cases.

Andrew S. Boutros, co-chair of Seyfarth Shaw's White Collar, Internal Investigations and False Claims Act Team, will lead the task force. It will be comprised of 10 to 12 members, including lawyers, academics, government officials, victim advocacy representatives, and other constituents.

"The Criminal Justice Section is committed to fair and balanced procedural and substantive due process in the criminal justice system," said Matthew Redle, chair of the ABA Criminal Justice Section in a press release. "Those same carefully calibrated rights and protections for both the victim and the accused are also critical in the college disciplinary system, where the stakes are exceptionally high on both sides and the collateral consequences of a finding of responsibility are abundantly severe."

Educating Lawyers

The ABA has been actively educating lawyers and others about the legal and social issues involved in college sexual misconduct cases. The 400,000-member organization is hosting a six-part series of teleconferences from a civil rights perspective through March 24, 2017.

Among other issues to be addressed by the ABA, members will consider recent government regulations that impose Title IX obligations schools to provide students with environments free of sexual harassment and assault. They will look at the Campus Save Act and the Violence Against Women Act, and make recommendations about best practices and how to handle complaints.

In a conference last August, the ABA brought educators, lawyers, and jurists together to discuss balancing the rights of the accused and the victim of sexual misconduct on campuses.

"Campus sexual violence is a serious and real problem and it must be handled with care, diligence, and expert thought," said Boutros, a panel monitor and head of the new task force. "Any solution must appropriately balance the rights of the victim and the accused. Victimizing the victim is just as problematic as permitting the innocent to be punished."

Regulation

A major issue is whether sexual misconduct on college campuses must be proven using a "preponderance of the evidence" standard or a "clear and convincing evidence" standard. The U.S. Department of Education's Office for Civil Rights backed the preponderance of the evidence standard in guidance to colleges and universities in 2011.

Lawyers and educators have protested that the procedures "lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation."

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