On April 9, a student identified as “John Doe” opened a lawsuit against the University for allegedly mishandling a case against him in a Special Examiner’s Process last year. The student is seeking damages for, among other things, defamation and loss of educational and economic opportunities. While we do not wish to play judge and jury in this particular case, this board does recognize that it illustrates many of the serious flaws that exist within the University’s Special Examiner’s Process. 

Students have advocated for and achieved the addition of substantial resources for the protection and support of victims of sexual misconduct, including the creation of a new Rape Crisis Center and new position for a sexual assault services and prevention specialist. 

Now these holes in the SEP also need to be addressed to protect the rights of the accused and the integrity of the process’ findings. The problems with the SEP are symptomatic of larger problems with how sexual assault is judged and punished at the university level.

At Brandeis, as well as at colleges and universities across the nation, administrators with no legal or investigative expertise are expected to construct systems capable of determining guilt for sexual assault, all the while under scrutiny from students, parents and the media to be tough on the epidemic of sexual assault on college campuses. 

This is due to Title IX, a law prohibiting discrimination in universities on the basis of sex and gender,  which mandates that universities develop systems for punishing sexual assault. 

Title IX also mandates that universities determine their rulings based on “a preponderance of the evidence,” a much weaker standard of proof than in criminal courts. Considering the pressures and limited resources, it is understandable that universities might overcorrect for the criminal courts and build systems that are quick to find the accused guilty. However, such behavior fosters a system that deprives the accused of their constitutional, due process rights, and this is unacceptable.  

The rationality of Universities is practically problematic, but also understandable in the lens of the national environment. The criminal justice system, for instance, only convicts about six percent of all rapes reported to the police, according to statistics from the Rape, Abuse and Incest National Network. 

Meanwhile, organizations such as the Enliven Project and the “Making a Difference” Project estimate that anywhere between two and seven percent of cases are falsely reported to police. That would leave 87 to 92 percent of reported rapes statistically likely to be true reports, without enough evidence to secure a conviction. Undoubtedly, this is a problem. But the system that Brandeis has put in place has not served as a suitable substitute to the criminal justice system if it does not respect the rights of the accused.

Doe’s case alleges that “[t]he Process has no safeguards to prevent the Special Examiner from conducting a biased, incomplete, or incompetent investigation … and vests in one person the conflicting roles of investigator, prosecutor, and judge.” 

Indeed, the Special Examiner in Doe’s case was an attorney from outside the University, a choice which may give the appearance of objectivity and legal expertise. 

However, all Special Examiners are appointed by the Dean of Students’ office, the same body to whom the examiner delivers their report and who ultimately judges guilt based on that report. The Dean of Students also processes Community Standards Reports—which must be filed to initiate a Special Examiner’s Process—and No Contact Orders, such as the one Doe filed against his accuser. 

In other words, the Dean’s office is close to the case before it reviews evidence and makes its ruling, and it may be personally connected to the students it must objectively judge, especially on a small campus like Brandeis. 

The investigator in the case, the Special Examiner, is also essentially employed by the judge, the Dean of Students. Police are not employed by judges, because there must be a difference between the institution determining the truth of an incident and the institution looking for a criminal. Brandeis’ current process has no such distinctions, and thus an undue amount of power and opportunity for bias are both granted to the Dean of Students office. 

Additionally, the Special Examiner’s Process does not feature any hearing at all; there is no time in the process when a fully informed defendant can argue their case to those ruling on it.

While the appellate process of the Special Examiner’s Process is not directly affiliated with the Dean of Students, it makes even less effort to grant power to those qualified to make just rulings—the type which would normally be determined by a judge. 

Appeals boards are made up of faculty members; (outside of Legal Studies professors), academics have no training in how to determine a just verdict and, again, may be biased because of personally knowing students and witnesses involved in cases.

This board takes issue with a basic lack of fairness in the Special Examiner’s Process. While developed with the absolute best of intentions, its systems do not promote civil rights and a fair chance at the defense of those facing the weighty charge of sexual misconduct. 

We recommend the University instead think about revisions to the current process that would cultivate a more equitable judicial proceeding by promoting the civil liberties this country was founded on.