The following is a guest submission from Max Weisbrod ’16, an Urban and Regional Studies major and a director at Prosperity Ithaca, a non-profit focused on cross-community initiatives.
Cornell’s handling of sexual assault cases, among other types of offenses, is a categorical failure.
I am not the only one who is concerned. Cornell is currently being investigated by the US Department of Education for its mishandling of Title IX cases while simultaneously fighting a suit from a former student who alleges that he was denied due process.
The authors of Policy 6.4 (Prohibited Discrimination, Protected-Status Harassment, Sexual Harassment, and Sexual Assault and Violence) and the Office of the Judicial Administrator (currently headed by Mary Beth Grant) have denied survivors of sexual assault peace of mind and speedy resolution of their claims, have systematically dismantled the accused’s access to a fair process, and have potentially exposed the university to millions of dollars in liability and legal fees.
A Second Assault on Survivors: We are Not in Compliance with Federal Law
The Office of Civil Rights’s (OCR) 2011 “Dear Colleague Letter” demands that cases involving sexual violence take no more 60 days from the filing of a complaint to an initial decision (read explication here). Over the past two years, Cornell took an average of 161 to 173 days to complete an investigation. By this metric, we do not take sexual assault as seriously as our peer schools, like Yale and Columbia, that do meet this minimum federal standard.
Even more troubling, Cornell’s policy establishing how victims can bring complaints of sexual assault or harassment against faculty has not been updated since the late 90’s and is in clear violation of federal guidelines. Victims can be ushered into binding informal resolutions against their will and stripped of their rights; investigator recommendations are initially reviewed by the accused faculty member’s dean; charges must be proven at the clear and convincing standard rather than the preponderance of the evidence standard; and the accused may confront and cross-examine the victim.
Cornell’s sexual assault policy further disempowers survivors. While SHARE.Cornell.edu claims that survivors may “talk to the police in an exploratory fashion,” the Judicial Administrator can choose to pursue charges against the wishes of that victim. Moreover, as dictated by OCR guidance, survivors do not have access to any sort of non-binding informal resolution with the accused. A survivor is locked into one process from the moment he or she files a complaint. The process is the same independent of whether the accused is a stranger, friend, or lover of the survivor. The Judicial Administrator’s office does not need to be sensitive to the concerns of the survivor and the survivor cannot back out. It is unconscionable to force a victim of trauma immediately into a process regardless of her social and emotional concerns, or even her desired outcome.
Violations of Due Process that Destroy Academic Careers
On the other end of the spectrum, Cornell stacks the deck against the accused. Defendants do not have the right to remain silent nor the right to appear, lending undue authority to the “independent investigator.” These supposedly independent investigators, one of whom previously worked as an assistant District Attorney, in fact work directly under the Judicial Administrator’s office. The Judicial Administrator is not required to provide access to exculpatory evidence. Of further concern is that the office employs community members as assistant investigators with unknown training, experience, and motivations. The Judicial Administrator’s office itself is all-female, which implies the same kinds of unintentional biases and blindness seen in male-dominated systems.
Worse still, the Judicial Administrator has liberally exercised her de facto ability to unilaterally, immediately, and irrevocably destroy any alleged perpetrator’s academic career before even beginning an investigation. Policy 6.4 allows for temporary suspensions in cases where the Judicial Administrator believes the accused poses an immediate threat to safety and well-being of the community. The meaning of this phrase has been stretched to the point that an accuser can have the accused’s relationship with the university terminated because of a “feeling;” thus, “. . .Policy 6.4 is recast as a tool for injury, with which one party may induce the suspension of other through merely uttering a few magic words, the truth of which are impossible to verify” (Minikus, pg 31) A temporary suspension of even a few days is devastating; the accused loses access to Blackboard, Cmail, On-Campus Housing, Financial Aid disbursements, and Dining Halls.
Tom Reed, Kirsten Gillibrand, and Elizabeth Garrett Must Take Action
We know that what we are doing is not working. At most, only 14 alleged assailants have been addressed in the past year out of a community of nearly 30,000 people, far below the 20-some-odd percent we see in study after study.
Our primary objective as a community is not punishing rapists and making examples of the accused; we want to protect our community from sexual assaults and provide survivors validation, justice, and support.
While everybody can take action against sexual violence, I would like to offer the following recommendations to those in positions to effect specific changes:
Tom Reed, students’ access to due process is being seized in your district by overzealous bureaucrats. OCR guidance combines civil evidence standards with criminal-equivalent punishments that force the accused to prove their innocence. The US Congress should curtail or threaten to curtail the authority of the OCR to necessitate the restriction of students’ access to due process.
Kirsten Gillibrand, the OCR, though well-intentioned, is disempowering victims. The US Congress should exert influence on the OCR to allow survivors access to non-binding informal resolution of their complaints.
Elizabeth Garrett, Policy 6.4 is a mess, written by an unknown cabal of administrators in a closed room. Administrators should not stand in the way of the University Assembly’s attempts to establish a better, more democratic policy that would live within the Code of Conduct. Hopefully, such a policy would reflect all of the recommendations produced in the JCC’s report.
Ithaca Mayor Svante Myrick Should Also Act
We are a community, and the presence of sexual violence affects all of us. It should be concerning that Cornell has not provided students with comprehensive education on reporting sexual assaults. Mayor Myrick should investigate how the City of Ithaca could deliver education on reporting to students living off-campus. While we can and should look to how Cornell should change its policies, but we must not continue to wait for administrators to act.
The Annual Report of the Judicial Codes Counselor can be found here. The author of the report, Amanda Minikus, JD, can be reached at alm362@cornell.edu.
