Courts, Not Campuses, Should Decide Sexual Assault Cases

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Wednesday, September 16, 2015

High-profile cases have recently put campus sexual assault in the spotlight. One question that has repeatedly come up: why are these cases being handled by campuses at all? Title IX requires that every school receiving federal aid must take concrete steps to deal with hostile environments and sexual assault. This leaves colleges and universities with the task of figuring out what policies and procedures to enforce. Proponents say that campus investigations serve a real need, forcing schools to respond to violence and protecting the interests of victims in ways that the criminal justice system may fail. Can schools provide due process for defendants and adequate justice for victims, or do these cases belong in the courts?

  • JedRubenfeld90px


    Jed Rubenfeld

    Professor, Yale Law School

  • JeannieSuk90


    Jeannie Suk

    Professor, Harvard Law School

  • MichelleAnderson90


    Michelle Anderson

    Dean, CUNY School of Law

  • Schulhofer90px


    Stephen Schulhofer

    Professor, NYU School of Law

    • Moderator Image


      John Donvan

      Author & Correspondent for ABC News

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For The Motion

Jed Rubenfeld

Professor, Yale Law School

Jed Rubenfeld is the Robert R. Slaughter Professor of Law at Yale Law School. His subjects are constitutional law, privacy, First Amendment, and criminal law. He is the author of five books, including Freedom and Time and Revolution by Judiciary: The Structure of American Constitutional Law. Rubenfeld received his AB from Princeton and his JD from Harvard.

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For The Motion

Jeannie Suk

Professor, Harvard Law School

Jeannie Suk is a professor of law at Harvard Law School, with expertise in criminal law and procedure, sexual assault, and Title IX. She has published three books, including At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy, which was awarded the Law and Society Association's Herbert Jacob Prize for the best law and society book of the year. She is a member of the American Law Institute and an Adviser for its revision of the Model Penal Code on sexual assault and related offenses. She serves on the Board of Directors of the Asian Task Force Against Domestic Violence. She has been a Guggenheim Fellow and a fellow of the MacDowell Colony. She was educated at Yale (BA), Oxford (DPhil), and Harvard Law School (JD), and was a law clerk to Justice David Souter on the Supreme Court of the United States.

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Against The Motion

Michelle Anderson

Dean, CUNY School of Law

Michelle Anderson, dean at CUNY School of Law, is a leading scholar on rape law. A member of the American Law Institute, she is an adviser to its project revising the Model Penal Code on sexual offenses. She also serves on a Department of Defense Subcommittee revising the military definition of rape. Anderson graduated from Yale Law School, where she was Notes Editor of the Yale Law Journal. Following law school, she clerked on the U.S. Court of Appeals for the Ninth Circuit for Judge William Norris. Anderson is a former policy chair of the National Alliance to End Sexual Violence. She is the recipient of the Distinguished Leader in Education Award from Education Update and the Diversity & Inclusion Champion Award from the New York City Bar Association. In spring 2016, she will be a visiting professor at Yale Law School.

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Against The Motion

Stephen Schulhofer

Professor, NYU School of Law

Stephen Schulhofer, the Robert B. McKay Professor of Law at New York University School of Law, is one of the nation’s most distinguished scholars of criminal justice. He has written more than 50 scholarly articles and seven books, including the leading casebook in the field, as well as Unwanted Sex: The Culture of Intimidation and the Failure of Law (2000), recently described in the New York Times as “one of the most important books on rape law published in the past 20 years.” Schulhofer currently serves as the reporter for the American Law Institute’s project to revise the sexual offense provisions of the Model Penal Code. Previously, Schulhofer held professorships at UPenn Law School and the University of Chicago Law School, where he was director of the Center for Studies in Criminal Justice. Before beginning his academic career, he clerked for U.S. Supreme Court Justice Hugo Black and practiced law.

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Declared Winner: Against The Motion

Online Voting

Voting Breakdown:

51% voted the same way in Both pre - and post-debate votes(39% voted FOR Twice, 7% voted AGAINST Twice, 5% voted UNDECIDED Twice). 49% changed their minds (10% voted FOR then changed to AGAINST, 7% voted FOR then changed to UNDECIDED, 4% voted AGAINST then changed to FOR, 1% voted AGAINST then changed to UNDECIDED, 13% voted UNDECIDED then changed to FOR, 14% voted UNDECIDED then changed to AGAINST)| Breakdown Graphic

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    • Comment Link Tommy Gilley Thursday, 14 January 2016 01:24 posted by Tommy Gilley

      This debate made me physically sick. The complete disregard for any semblance of due process or impartiality combined with their zeal for righting 200 years of wrongs was depressing. Even worse is their positive benefit that their punishments were no where near as bad as the courts. They're the comfy pillow of social justice.

      These were learned people who our society vests a tradition of moving society forward. Our society has become fetid through the inside, and it's decline is guaranteed.

    • Comment Link Anna497 Tuesday, 15 December 2015 21:50 posted by Anna497

      The debate about Campuses or Courts should decide about sexual assault has a lot of different opinions.
      In my opinion courts should decide sexual assault when its something serious because almost none college has the resources to deal with these kind of issues.
      But I think that if its something that the victim considers could be solved inside the campus, there is no need to go to the courts.
      When a victim reports to the courts, the case will become public. It means that this student will remember this his whole life. I don't recommend this to anyone but sexual assault isn't a joke either what means that if it's serious enough, it's important to report.

    • Comment Link Frank Saturday, 12 December 2015 18:24 posted by Frank

      The online pie chart shows just how liberally biased the studio audience is. I am happy to see the online poll added. Many of these well meaning types of events are held in bastions of liberalism so you do not get anywhere close to reality with the live audience. Maybe you guys could have a before and after for the online poll too?

    • Comment Link Frank Saturday, 12 December 2015 18:20 posted by Frank

      Adults are adults no matter if they are in school or working a job. Being in school and over 18 does not mean you should not go to jail because you are experimenting. Everyone 18 years old is experimenting. So if you do a crime you speak to the police not a school official.

    • Comment Link Jskyep Wednesday, 09 December 2015 22:50 posted by Jskyep

      After watching this debate, I picked up on good points from both sides of the argument, courts versus campuses. However, if it came down to one that pulled through for me with the strongest and most valid points, I would go with the campuses. It wasn’t until the end of the debate that I realized that the campus side wasn’t against going to the police, but rather declaring there is an additional option for the victim when it comes to reporting the incident. I think Title IX is a great necessity for a campus to have and can be great for a lot of events on campuses. For example, if a student was sexually assaulted but not to the extent of rape, I think the option of turning it into the campus security or Title IX coordinator would be a great option. This could prevent the victim from having to deal with the assaulter in classes or on campuses anymore, but wouldn’t take the situation all the way to the courts. I feel like so many sexual assault cases go without being reported because the victim may be too intimidated to take the case to the police. I think the campus side of the debate had the greatest point when it comes to deciding sexual assault cases.

    • Comment Link Jam_Sackson1 Monday, 07 December 2015 22:28 posted by Jam_Sackson1

      I loved how both sides presented their cases! I am for this motion, I think that courts would have a bigger say over rape cases and sexual assaults. However, I do think that sexual harassment can and should be felt at the campus level. To me, there is a difference between Sexual harassment, assault, and rape. The last two are something that should be dealt at the court level.

    • Comment Link Ghostshark1997 Monday, 07 December 2015 17:11 posted by Ghostshark1997

      I believe that the court and campuses need to work together. They are both places where we need to feel safe and be able to open up and confess about things that are going on. The students health and safety need to be the main concern. The campus needs to do everything in it's power to make the victim feel safe and better, and the police need to do everything they can to arrest/detain the accused so they won't try to do it again.

    • Comment Link Chistine Monday, 07 December 2015 09:02 posted by Chistine

      I agree that it might be easier for students to go to the colleges after they got raped. Many students just moved out from home and this is something very shocking and scary, so going to the police might be not the first idea they have. But many cases showed that colleges aren´t able to handle such situations. When a student at the California Institute of Arts reported a rape case to her college they started asking her extremely humiliating and inappropriate questions like how short her dress was, how much she drunk, or even if she climaxed. One of the worst things I could imagine that happens to my children would be that they get raped but even worse would be if they, when they are still in a state of shock, have to handle with such questions. I would want them to get treated right, by people who are trained to do that, who do that not for the first time, who can promise that rapist of my child gets a fair punishment, that my child is save on campus as well as off campus. I think only the police and courts can provide that. A suspension is no punishment, college students are adults and no kindergarten children. If a person rapes someone outside of a campus they have to go to jail, lets not make campuses a law-free zone.

    • Comment Link Stark Thursday, 05 November 2015 21:04 posted by Stark

      I think IQ2 fumbled the proposition by using the term "sexual assault" rather than "rape." If they had used the latter term, everyone would have been on the same page as to what they were debating, and the audience would have known exactly what they were voting on. As is, we had the two sides debating what the proposition was, and when they turned to the substance, we had one side talking about rape and the other side talking about groping. They just ended up talking past each other, and with good reason: if someone grabbed your butt, then sure, go to the administration. But if someone raped you, they need to be put on trial, period.

      I think the "against" side won the debate, and that the "for" side did a poor job of emphasizing just how badly some accused students have been railroaded by these collegiate Star Chambers and how dire the consequences can be. The "for" side also failed to point out how most students would be unable to afford a lawyer to go to court and clear their name if they got kicked out of school, and that in any event such a concept is anathema to the presumption of innocence. The Department of Education really needs to stop punishing universities for observing such quaint niceties like due process.

    • Comment Link Chris Sunday, 04 October 2015 19:48 posted by Chris

      I'm troubled that the biggest argument for these campus tribunals is that our criminal justice system doesn't work. Colleges and universities are SO secretive, more so every year. They are far more interested in PR than justice. Why, instead of "fixing" one system, are we creating another that can't be trusted?

    • Comment Link John Vance Tuesday, 29 September 2015 17:48 posted by John Vance

      The interpretation of Title IX to evaluate and punish violent crime is overreaching.. do we allow the police to determine disputes over grades? Not only are we obligated as a society to give any accused due process we are as obligated to prosecute and imprison rapists rather than just expelling them from university.

      We do need to make the process of going to the police more streamlined and less shaming. Let's get better at determining guilt in the actual Court system and leave professors and activists out of it.

    • Comment Link NC listener Wednesday, 23 September 2015 22:57 posted by NC listener

      Really great debate! Arguments on both sides were quite compelling, I changed my position several times during the course of the conversation. Ultimately, the Againsts won me over.

    • Comment Link Spoonwood Tuesday, 22 September 2015 19:18 posted by Spoonwood

      The moderator was wrong to try to deflect attention away from what the debate proposition was. Doing that indicates that the moderator wanted to have people talk more and make it look like there was a debate, instead of letting people decide on the actual proposition at hand.

    • Comment Link Joe Bloke Thursday, 17 September 2015 14:07 posted by Joe Bloke

      No doubt alleged victims and alleged rapists frequently conceive of what constitutes rape in different ways. No doubt this dissonance explains many of the most controversial cases that are handled on campus but not in the court system.

      Question for those in favor of keeping some rape claims on campus and out of the courts: Administrability is a concept with which we as lawyers are all familiar. Administrable rules also improve notice--another concept with which we are all familiar--and unadministrable rules degrade notice. No doubt (can it be doubted?) "no means no," to the extent it is limited to express "no" (to vocalize refusal is the point of "no means no") is the MOST administrable rule of rape and "yes means yes" is, to the extent it (and certainly it must) encompass implicit"yes," is the LEAST administrable rule of rape. Correspondingly, "no means no" is the best at providing notice to would-be rapists and "yes means yes" is the worst.

      Ergo, does not rejecting the as of late fashionable and so-called progressive "yes means yes" standard advocated by feminists serve to reduce controversial rape accusations handled on campus and out of the courts? Further, does not reaffirming the "no means no" standard preferred by men serve to further reduce such accusations?

      If the goal is to reduce such controversial rape accusations, an answer of "yes" to the two questions just posed means that "yes means yes" should go and "no means no" should come back in a big way. If the goal is to expand the set of actionable injury to women to include injury a woman alleges she suffers when she has sex but does not expressly say "no" before or during sex, then answering "yes" to the two questions just posed is not the end of the story; for those perusing this goal, controversial rape accusations are a means to that goal and should be increased, not reduced.

      Which leads us to the most uncomfortable subject that panelists really must be adult enough to address: what is good sex? How else, rationally, can we decide whether to go down road one--the road of "no means no" and reducing controversial campus-only accusations--or road two--the road of "yes means yes" and expanding controversial campus-only accusations to expand what counts as actionable harm to women--if we cannot name what we, as a society, lose as well as gain from the latter course? And, what else do we lose by expanding actionable harm to women but the sexual activity that was before legal but which now--however broadly--would become the subject of prosecution and potential criminalization or sanction? How else can we weigh what we gain against what we lose without asking whether the sexual activity we lose is "good?"

      If good sex includes a man being aggressive in accord with traditional social norms and bad sex includes the opposite, it seems we should go back to "no means no." I agree with that view. Further, because social norms on the question of sex are largely informed by biology, and sexual freedom--as with any freedom--is an independent good, the right road to chose is "no means no."

      As serious as a heart attack, I posit that Fifty Shades of Gray has more to do with a rational, legal debate between "yes means yes" and "no means no" than feminist ideology about autonomy. The reason--to switch to a more academic tone--is that, as explained above, the question requires a utilitarian answer.

      And that's so important I am going to repeat it. I have studied this and related questions for several years as a lawyer and have paid through attention to the relevant academic commentary. I also have a background in philosophy stronger than one typically finds in legal academia. Panelists, as they are thinking about how to answer the questions I posed above, should pay attention to whether they are thinking in utilitarian terms or deongological terms. They then should justify why. In my experience clawing through these controversial questions, the subject of rape, more so than any other crime or violation, demands a utilitarian analysis and that analysis, outlined above, leads squarely to the rejection of "yes means yes" and the endorsement of "no means no."

    • Comment Link Jay Tennebaum Tuesday, 15 September 2015 15:05 posted by Jay Tennebaum

      A question for the "Fors":

      Given how lengthy a criminal/court process is, when a complaint is raised, what should schools do to ensure a safe and productive learning environment?

      Four questions for the "Cons"

      What should a school do if a student refuses to cooperate with testimony under the knowledge that any testimony can be used by a criminal prosecutor?

      Do you have college aged sons? What advice would you give them if they were accused of sexual harassment?

      How should the school's process differ if a student accuses a professor of sexual assault?

    • Comment Link John Sunday, 13 September 2015 11:42 posted by John

      Sexual assault is not a form of discrimination, nor is it reflective of any broader culture or climate. It is a violent crime perpetrated by small numbers of bad actors, who should be prosecuted as criminals. Even RAINN has said as much.

      Railroading a large number of students through unfair disciplinary hearings for vaguely defined insults in order to catch a small number of genuine predators is not a viable or ethical strategy. Campus discipline is for students who cheat on tests and vandalize dorms, not for violent felons.

    • Comment Link jdgalt Saturday, 12 September 2015 15:53 posted by jdgalt

      What Jeffrey Deutsch said.

      The immediate cause of this problem is the Federal Dept. of Education, which is forcing all federally funded schools to adopt an outrageously low standard of proof in these cases. Fortunately, now that falsely-accused guys are starting to win large judgments in these cases, I expect lots of schools soon to stop accepting federal money. It's no longer worth it. (The federal government has no authority to be in the education business outside DC anyway.)

      Of course, the root cause is modern feminism, which insists that if people get drunk and have sex they may regret later, the man is to be held responsible for his actions but the woman is not. That's not only unfair, it's idiotic. Women who aren't willing to take on the responsibilities of being an adult shouldn't get the rights either.

    • Comment Link Challenge_Media Saturday, 12 September 2015 11:33 posted by Challenge_Media

      It cannot be either or. Rapists repeat their crime. Universities have an obligation to protect the victim's education and expel the accused. Sadly DA's and courts remain extremely prejudicial toward rape victims, unwilling to proceed with cases where no witness was present. It takes a community to put a dent in this epidemic of male violence.

    • Comment Link Kat Saturday, 12 September 2015 08:04 posted by Kat

      College seem to take advantage of this authority they have been given. In many of these cases schools have been found trying to cover up cases because they are In fear of ruining their image. Many times colleges have failed to establish proper policies and procedures and if they can't successfully protect their students then this should go straight to courts because these are crimes and schools aren't meant to handle crimes.

    • Comment Link Jeffrey Deutsch Thursday, 03 September 2015 18:00 posted by Jeffrey Deutsch

      Yes, college is a time to experiment without life-destroying consequences. Rape and sexual assault aren't experiments, and even "just" expulsion -- especially under these circumstances -- is a life-changing if not destroying consequence indeed.

      And on the other hand, it's still woefully inadequate for actual rapists. Especially when they're free to strike again.

      Let the police investigate them and, if probable cause is found, the courts try them. And for those found guilty beyond a reasonable doubt after all the appropriate due process protections, let the prisons hold onto them for a while.

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