Twenty-three Cornell law professors filed a motion last month to submit an amicus brief in the case of John Doe v. Cornell University. The suit deals with whether the university erred in adjudicating a sexual assault case between two students (called Sally Roe and John Doe in the legal proceedings). The professors argue that Doe was not given the opportunity to confront his accuser, and that the university therefore denied him due process.
In August 2016, Roe alleged she was raped while incapacitated at an off-campus fraternity party. She filed a complaint four days later. Within a week, Doe "filed a cross-complaint, alleging that Roe had initiated additional sexual activity without his affirmative consent," per the lawsuit. Then, in October of that same year, Roe filed yet another complaint saying Doe's grievance was retaliatory and not grounded in fact.
It gets even messier. Roe's own retelling of how much she drank that night was inconsistent between reports, depending on who was interviewing her. Witnesses claim that Roe had broken up with her boyfriend two days prior and was "really upset about this guy…she wanted to meet somebody new." Roe disputes that account.
In May 2017, Cornell found Doe responsible for the rape and for filing a retaliatory complaint. He received a two-year suspension. Doe appealed, claiming that in the initial proceedings he did not get the chance to ask his accuser certain questions or have another person ask such questions on his behalf during the disciplinary hearing. Per the brief, Doe's questions would have centered around "Roe's plans for the party, her recent breakup with her boyfriend, or her inconsistent statements."
Cornell's stated policy is that "The Hearing Chair will approve in substance all questions or topics that are relevant and that are not prohibited by these procedures or applicable laws, unduly prejudicial, or cumulative of other evidence." The questions provided by Doe meet these standards, according to Doe and his legal team, but they were not asked of Roe.
The law professors note that the right to ask questions of an accuser is not just guaranteed by Cornell's procedures but is a fundamental underpinning of the American legal system, one "essential to truth-seeking and a fair adjudication."
They also discuss the broader significance of ensuring proper due process for accused students, and they "encourage this Court to continue to serve as an effective check on colleges and universities, which have been vested with authority to inflict life-altering punishment in this controversial area."
Clearly, rape is life-altering, too. But that's one reason why a fair adjudication process matters so much: If Roe was raped, and Doe is in fact guilty, surely we don't want him to be let off the hook due to a legal error. Yet that could happen if he successfully appeals.
And if he's not guilty, he's been denied due process and profoundly harmed. As the professors write (relying on Goss v. Lopez), "a student found responsible 'may face severe restrictions, similar to being put on a sex offender list, that curtail his ability to gain a higher education degree…Thus, the effect of a finding of responsibility for sexual misconduct on 'a person's good name, reputation, honor, or integrity' is profound.'"
In other words, neither due process protections nor sex crimes should be taken lightly. It's crucial that colleges consider how fair their adjudications are when students' futures are hanging in the balance.
This isn't the first time professors have showed concern about their students' rights. In 2014, 28 faculty members at Harvard Law voiced their concerns in the Boston Globe about Title IX, the federal statute dealing with gender equality that requires universities to investigate sexual assault. In 2015, 16 law professors from the University of Pennsylvania published an open letter that said, "Due process of law is not window dressing; it is the distillation of centuries of experience, and we ignore the lessons of history at our peril."
Any hearing with severe consequences should allow an accused person to challenge the accusations and the accuser's credibility. And especially with a crime as serious as rape, we can't afford to have legal clumsiness leading to adjudications gone awry.