In response to the April 21, 2015 editorial “Reform sexual assault judicial practices” by the Justice Editorial Board: Brandeis Students Against Sexual Violence would like to correct the misinformation provided and speak to the harm this editorial poses to survivors and our community. This is not the first time the Justice has published false information. In November 2014, the Justice called for the creation of a task force on sexual violence which already existed at the time—an oversight B.SASV members informed the Board of and which resulted in an apology. Again, we will correct the misinformation from the most recent editorial, citing multiple credible sources, to show that the Special Examiner’s Process, while imperfect, is not skewed against accused students. 

We agree that the Special Examiner’s Process is imperfect and recognize that the rights of both the accuser and the accused must be protected. However, much of the criticism in the editorial stems from the belief that the SEP has not been a “suitable substitute” for the criminal justice system. 

This argument is flawed because the SEP is not a legal trial or court of law, nor is it intended to be one; the SEP is an investigation into potential violations of the Brandeis code of conduct, as outlined in the Rights and Responsibilities handbook. Therefore, while the University must act in accordance with a student’s right to due process, the SEP functions differently from the criminal justice system because it is not a legal process.

The Board criticized Brandeis for using the “preponderance of evidence” standard of proof where it must be proven that it’s “more likely than not that sexual harassment or violence occurred.” The Office of Civil Rights mandates this standard based on the Supreme Court’s decision to use it in “civil litigation involving discrimination” from the OCR Dear Colleague Letter. Since the SEP is not a criminal case and involves students’ Title IX rights, this is appropriate. It is unproductive to compare the SEP to a criminal court or to argue that it “might overcorrect for the criminal courts,” because the SEP is a private, internal adjudication process in which a student can only be found in violation of the institution’s code of conduct. 

Furthermore, the estimated percentage of “false” reports is between two and eight percent according to the National Sexual Violence Resource Center and the National District Attorneys Association. We would like to present the following statistics: 92 to 98 percent of reported cases are true; one in five self-identified women and one in 16 self-identified men experience sexual assault in college according to NSVRC; “90 percent of sexual assault victims on college campuses do not report the assault” according to NSVRC; 68 percent of sexual assaults are never reported to the police according to Rape, Abuse and Incest National Network; 98 percent of rapists will never spend a day in jail according to RAINN. It is important to recognize, therefore, that if survivors were made to go through the criminal justice system, reporting rates would drop drastically and fewer dangerous perpetrators would be removed from our community or punished for violating our community standards. 

The editorial stated “all special examiners are appointed by the Dean of Students’ office.” This is untrue. Special Examiners are outside, unbiased professionals who conduct impartial investigations (OCR) and are not supervised, appointed, or paid by the Dean of Students. The new Title IX Investigation/Compliance Officer Rebecca Tillar, an attorney with experience in sexual misconduct cases in the military, acts in some but not all cases as Special Examiner. She is part of the Title IX Office and is also not supervised or appointed by the Dean of Students. 

The editorial says the Dean of Students “may be personally connected to the students it must objectively judge.” This again is untrue. Section 21 in Rights and Responsibilities 14-15 states that if the DOS knows any involved party or feels there is a conflict of interest, they cannot make decisions in the case, and that responsibility falls on the next senior administrator who does not have a conflict of interest.

Lastly, the Board argued that in the SEP “there is no time in the process when a fully informed defendant can argue their case.” Rights and Responsibilities outlines the SEP in which the accused student is shown the relevant CSR, informed of the process and given an opportunity to accept or deny responsibility in the Statements phase (Section 22, 53). There is then a Fact-Finding Phase and  a series of interviews in which the accused argues their case to the Special Examiner, who ultimately makes a report that “summarizes factual findings, offers conclusions about the credibility of testimony and offers opinions about whether the accused is responsible or not responsible for any or all charges” (R&R Section 22, 54-55). Those who would be “ruling on it” use that report to make their decision.

In addition, the SEP does not include a hearing in which the accused can confront their accuser because it is not a court of law. Obligating the accuser to testify in front of their assailant or abuser may put them under serious emotional, mental and physical duress. If the SEP were to force these interactions despite existing no-contact orders, it could jeopardize the accuser’s safety and deter others from initiating the SEP or making a report about incidents of sexual assault. 

By suggesting the SEP must be corrected on behalf of the accused, the Editorial Board propagates assumptions produced by rape culture, such as the belief that most incidents are simply “miscommunications,” that perpetrators of sexual violence made an honest mistake and are not dangerous enough to be expelled or that survivors are only looking to make trouble. While understanding the Board’s intention to advocate for accused students’ rights, we ask that they recognize the ways the SEP repeatedly fails survivors by allowing parties responsible for sexual misconduct, often repeat offenders, to stay on campus. One only needs to attend Take Back the Night or read submissions on SpeakOut! Brandeis to find many cases in which perpetrators found responsible for a form of sexual violence were allowed to remain at Brandeis with minimum sanctions.

We agree that the administrators currently responsible for deciding SEP outcomes are not equipped or informed enough to do so; however ,these decisions often favor the accused rather than survivors. 

In fact, the rise in lawsuits against universities by accused students (like the recent lawsuit reported on by the Justice) actually gives institutions financial incentive not to appropriately punish perpetrators. Given the percentages of college-aged survivors who report their experiences and the low false reporting rate, it is irresponsible to call the system flawed without also noting how SEP fails to support survivors and protect the community by often allowing sexual assailants to remain on campus. 

The sources we cite are accessible online or in print. We ask that all members of the Brandeis community take the time to inform themselves, using the resources listed and others found on the Office of Prevention Service’s website. 

The type of misinformation and skewed understanding of sexual violence found in the editorial make survivors on our campus less safe and less likely to receive support, lowers reporting rates and ultimately perpetuates victim-blaming by centering the discussion about sexual violence on false reporting and supporting assailants.

—EDITOR’S NOTE: Members of Brandeis Student’s Against Sexual Violence contributed to the publication of this Op-Ed. The members who contributed are as follows: Angela Acevedo ’16, Cecile Afable ’16, Emily Appel ’15, Ariella Assouline ’17, Ava Blustein ’15, Jaime Korner ’17, Evelyn Milford’16, Michely Miranda ’17 and Tina Nguyen ’17.