Sexual Misconduct Policy at Johns Hopkins Creates Wide Room for Error

Elizabeth Gudgel is a rising junior at Johns Hopkins University and a FIRE summer intern.

At my university, Johns Hopkins University, last fall, a campus group presented an installation called “The Monument Quilt,” a vast display of fabric squares created by victims of sexual violence. The quilt nearly covered the school’s largest quad, featuring 450 stories from survivors, and students added 25 more during the one day that it was displayed.

The Monument Quilt came to campus this week via SARU, @CHEWatJHU, @UpsettingRape | http://t.co/1QvZVCRSC0 pic.twitter.com/ZvBUXw9zHE

— JHU News-Letter (@JHUNewsLetter) September 25, 2015

Approximately a year earlier, Hopkins announced it was under federal investigation by the U.S. Department of Education’s Office for Civil Rights (OCR) for alleged mismanagement of sexual misconduct cases. After the investigation, on August 19, 2015, Hopkins updated its sexual misconduct policy. In an announcement to students and faculty, university president Ronald Daniels deemed the updated procedures “responsive, compassionate, fair, and transparent.”

Unfortunately, the new procedures fall far short of Daniels’ lofty descriptors. The updated policy provides for an administrative board that oversees all sexual misconduct cases and mandates when employees must report cases to the campus Title IX coordinator. It does not require, however, that the university coordinate with law enforcement when handling allegations of rape and other violent sexual crimes. This means rapists at Hopkins potentially face expulsion, but no jail time or mandatory sex offender registration, leaving the expelled student free to potentially assault again.

As described in Section IX of the 25-page sexual conduct policy, law enforcement contact information is provided to campus security, accessible via the Title IX coordinator, and included in the procedure documents. However, all faculty and staff made aware of an assault are only required to report it directly to the Title IX coordinator. No one is required to contact the police once the report is brought to the coordinator; it is left to the university’s and complainant’s discretion. The right to involve the police should generally be left to the complainant. And victims should have the option of whether or not to cooperate with a police investigation. Schools, for their part, should be empowered to provide resources and accommodations to complainants who request them, regardless of whether law enforcement is involved. But making it optional for the university to tell the police about a reported felony sets up a perverse incentive for Hopkins, in which the school’s reputational interests may come into conflict with the best interests of the complainant and, if the accused is likely to repeat the offense, the entire student body.

Though massive, the Monument Quilt represents just a fraction of assault allegations that are reported to universities each year. In a hurried response to OCR’s investigation, Hopkins created an administrative process with myriad problems, including two that are particularly striking: First, as described above, Hopkins cannot help but massively under-punish actual perpetrators of sexual assault if police are not contacted. Second, a lack of due process for accused students will lead to innocent students wrongly being found responsible.

While proponents of school tribunals for sexual assault often invoke the truism that the legal system has problems, a school will never be able to create the proper trial and punishment process that the criminal justice system offers. Rapists should face jail time, not suspension, expulsion, or a mere slap on the wrist from school administrators. Additionally, people accused of serious wrongdoing are entitled to a fair procedure before being found responsible. And while some complainants may see personal benefits to handling their sexual assault cases internally (the chance to remain anonymous, have a fast hearing, and to never have to face the perpetrator during the entire process is far less intimidating and intrusive than a police investigation, for example), sex crimes are wrongs with far-reaching implications that go beyond the experience of any one victim. Society—not just a small group of college administrators—must address them. Hopkins, and universities nationally, are simply ill-equipped to handle these serious cases on their own.

At nearly every step of the Hopkins sexual assault procedure there is wide room for error. As described in Section VII, all investigations are conducted by internal or hired investigators, which include university staff who have an interest in maintaining the reputation of their school. Staff may also face internal pressures from senior administrators that police investigators would not. At the following “trial,” neither party is permitted to record any of the proceedings, or have an advisor of their choice—including legal counsel—question the witnesses or either party. This seems inexplicable. The administrative panel that decides the case can choose to censor or exclude any information, evidence, or witnesses from the hearing. That is, if a hearing even occurs—the administrative resolution panel can decide a hearing is unnecessary and come to a decision entirely on its own if it so chooses.

All of these factors make a fair investigation and proper advocacy for the complainant both difficult and unlikely. And, of course, those accused of sexual assault also deserve objective investigations and fair hearings. Mismanagement of these cases has the potential to brand innocent students sexual offenders in the eyes of their peers and the public. This can even harm future victims, as it creates an environment of skepticism and increases the doubt so often inflicted upon victims of sexual crimes when the lack of due process is publicized.

The enormity of The Monument Quilt, with its patchwork of individual experiences, provides a stark, visual representation of the terrible impact of sexual assault on America’s campuses. While any increase in attention given to the problem is laudable, proposed solutions must prioritize students’ best interests: justice for both the accuser and the accused, and a safer campus for everyone. Until Hopkins promises to let the legal system investigate and adjudicate sex crimes on campus, and to ensure due process to those accused of them, that justice will remain out of reach. And it’s Johns Hopkins students who will bear the consequences.

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