Blumner: A code that must change

Published Dec. 6, 2013

There WAS an accusation, a terrible one, against Jameis Winston, the star quarterback for Florida State University, that he raped a woman off-campus a year ago. • DNA links them. She says it was rape. He says it was consensual sex, and State Attorney Willie Meggs decided Thursday not to file charges of sexual assault. • Whatever happened, Winston was treated differently from others accused of such a crime. The Tallahassee police failed to fully investigate at the time the victim complained, and the university has been unreasonably sluggish in its own review.

The woman's attorney was allegedly told by a Tallahassee detective in January that the accuser's life would be made miserable if she pursued the case. That sounds like an effort to help a football player avoid a potential felony.

My natural sympathies lie with the victim. Just as in the military, too often in college campus sexual assaults the institution adopts a close-the-ranks attitude. The subtext is, "Sorry, dear, but you were drunk or you shouldn't have gone back to his room, or get over it."

But there is a flip side, too. That is the campus justice systems that deny due process rights to the men who are accused. Campus disciplinary hearings have the trappings of due process such as notice of the charges and a right to present evidence and cross examine witnesses. But they fall short where it really counts.

It starts with the quality of the investigation. Robert Shibley, senior vice president of the Foundation for Individual Rights in Education, says universities don't often employ experienced law enforcement to look into disciplinary complaints, leading to botched investigations. He described one case that turned on whether a person was at the scene or not and investigators had failed to take the obvious steps of checking the closed-circuit television recordings and reviewing the electronic door swipes to see who came and went.

The standard of proof used to convict also is often too low. Under FSU's campus disciplinary process, Winston could be found guilty of rape based on the "preponderance of the evidence." Think of it this way. If the "beyond a reasonable doubt" standard used in criminal proceedings requires 99 percent probability of guilt to convict, the preponderance standard requires a 51 percent likelihood.

On that weak showing, Winston could have a sexual assault on his academic record, get expelled and potentially be barred from any future job that requires a background check.

FSU is not an outlier. This is what the U.S. Education Department wants. In April 2011, the department sent a letter to colleges and universities reminding them of their obligation under Title IX to police sexual assaults and harassment on campus. The letter, a blueprint for schools, told them to use "preponderance of the evidence" to find guilt.

Couple this with a vague definition of what constitutes actionable sexual misconduct, and the process becomes even more unfairly weighted against men. FSU defines a nonconsensual sexual act as one where there is "no clear verbal consent," a definition so broad that it equates rape with ambivalence.

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Also actionable are "unwelcome, inappropriate, or irrelevant sexual or gender-based behaviors, actions or comments."

That last bit covers about half of everything college students do and say.

Students accused of sexual misconduct at FSU don't get a lawyer. They can bring an advocate to the hearing, but that person can only quietly advise the student. Essentially, students are expected to represent themselves on charges that can ruin their academic careers.

To fight back, male students who say they are victims of kangaroo campus justice are suing universities around the country for wrongful expulsion. Meanwhile the Education Department is taking up the complaints of women who say their schools allow assailants to go virtually unpunished.

Universities are stuck in the middle, but on the need for more due process I side with the accused.

The state attorney has declined to file criminal charges, but Winston still could face the disciplinary process at Florida State. If he does, the case will be the focus of intense public interest even as it is shrouded in secrecy. The process will be scrutinized for its fairness toward the victim and the accused. Other less celebrated college students, when facing equally serious charges, won't enjoy those same privileges.