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Excerpted From: Laura Perry, From Brock Turner to Brian Banks: Protecting Victims and Preserving Due Process in the New Area of Title IX, 14 DePaul Journal for Social Justice 1 (Summer, 2021) (285 Footnotes) (Full Document)



 In 2016, Brock Turner, a white student-athlete at Stanford University, sexually assaulted an unconscious woman behind a dumpster. Turner was sentenced to just six months in prison and served only three months before being released. The maximum sentence for the crime Turner was charged with is fourteen years, but the judge gave him an extremely light sentence, claiming that prison would severely impact Turner's future. Turner's case exemplifies the problems of both rape culture and white privilege on university campuses and in society at large.

Rape culture is defined as “a sociological concept for a setting in which rape is pervasive and normalized due to societal attitudes about gender and sexuality.” Rape culture is part of the reason why Turner, a wealthy, white athlete at an elite college, could sexually assault an unconscious woman and face minimal consequences: The judge presiding over his case was more concerned about the consequences for the perpetrator than the victim of the assault. In Turner's case, rape culture intersected with white privilege to afford him a light sentence and sympathy from a white, male judge, while his victim, a woman of color, was unfairly stigmatized for the assault.

Societal norms--such as victim-blaming, sexual violence against women in the media, and the tolerance of sexual harassment in the workplace--perpetuate rape culture. These norms work together to not only permit but also to promote sexual violence. Rape culture has infiltrated college campuses. College campuses “produce an expectation of partying that fosters the development of sexualized peer cultures organized around status.” Both a heavy pressure to drink among peers and media influences encouraging college parties lead to a pervasive culture of campus sexual assault. Indeed, there is a cultural double standard not applied to men in which intoxicated women are “viewed by our patriarchal society as promiscuous and desiring sex.” Rape culture remains a serious problem on college campuses.

In sharp contrast to Brock Turner--who received a very light sentence for sexually assaulting an unconscious woman--Corey Batey, a Black student-athlete from Vanderbilt University, received a fifteen-year sentence for a similar crime. Batey's case, when compared to Turner's, illustrates the racial disparities in sentencing between Black and white perpetrators of sexual assault. Beyond disparities in sentencing, Black students accused of sexual assault face the additional challenges of fighting the allegations against them in a racist legal system that has a long history of inadequately applying procedural protections to people of color. For instance, Brian Banks, a modern-day example of the Scottsboro boys, was a Black football player accused of rape at just sixteen years old. He received a five-year sentence for a crime he did not commit. His accuser later admitted to fabricating the allegations. The juxtaposition between Turner and Batey and Banks is stark.

It is impossible to ignore the racial disparities in sentencing and the disparate treatment of white and Black defendants when it comes to sexual assault allegations. On average, Black men receive sentences approximately 20 percent longer than white men who have committed the same crime. This is largely due to factors such as racial biases embedded in prosecutorial policies and sentencing laws, and also in racial biases inherent in judges and juries themselves.

Prosecutors are likely to charge people more harshly if they're [B]lack than if they're white ... There are racial disparities at each stage of the process. It snowballs as someone goes through the system. This starts with the likelihood of being arrested. Then there's the ability to post bail pre-trial, which research from the Sentencing Project shows leads to better trial outcomes, and to hire a defender. Then there's the jury issue ... there's evidence that [B]lack defendants are more likely to be convicted than white defendants.

The outcomes for Black men such as Batey and Banks are sadly not surprising when looking back at the history of the prosecution of rape in the United States. The history of rape in this country is stained with the false narrative that rape occurs almost exclusively to white women by Black men. Throughout history, Black men rarely received a fair trial when accused of rape by white women. Some were not even afforded a trial at all and were lynched or attacked by white members of the community who were advancing their own twisted sense of “justice.” The 1907 case of State v. Petit illustrates this extremely problematic, racist, and entrenched presumption. In Petit, the defense counsel seemingly praises the behavior of those who lynch Black men accused of rape:

Gentlemen of the jury, this man, a [negro], is charged with breaking into the house of a white man in the nighttime and assaulting his wife, with the intent to rape her. Now, don't you know that, if this [negro] had committed such a crime, he never would have been brought here and tried; that he would have been lynched, and if I were there I would help pull on the rope.

This harmful belief in the automatic assumption of guilt of a Black man when a white woman accuses him of rape has persisted over time. Studies show that Black men convicted of raping white women receive more severe sanctions than all other sexual assault defendants.

Moreover, Black women do not receive the same protection as white women when sexually assaulted. During the 1800s, under Louisiana law, the crime of rape was specifically limited to sexual crimes committed against white women. Louisiana law also had provisions that mandated capital punishment for the rape or attempted rape of a white woman by a slave. While such blatantly racist laws have been overturned, the consequences of unequal protection and lack of justice for Black women are still apparent today.

Throughout American history, the legal system has viewed rape through the lens of the dangerous Black man and the vulnerable and delicate white woman. This false narrative makes it difficult for women of color and gender nonconforming victims to prove their cases. Additionally, this false narrative makes it challenging for men of color, especially Black men, to adequately defend themselves in a legal system that has historically presumed them guilty before their trial.

If this stained history shows us anything, it is that the way our legal system handles rape cases must include protections for both defendants and victims alike, regardless of their race or gender. This is especially true on college campuses where rape culture is prevalent. The goal of this Comment is to address how to best protect victims of sexual assault, while also ensuring that defendants receive access to a fair process, especially when they belong to a group that has been historically unprotected, and even targeted, by the legal system. Indeed, college adjudication proceedings can serve as a model for affording victims of sexual assault protection and an adequate forum to be heard and believed, while simultaneously ensuring due process protections for defendants regardless of their race.

The issue of sexual assault is personal to me for a variety of reasons. During my undergraduate career, I served as a caseworker in the Conduct Division of the University of California, Berkeley Student Advocate's Office. My job was to represent students accused of violating the University of California (UC) Code of Conduct in campus adjudicative proceedings. Many of the cases I worked on involved sexual assault allegations. I represented students, like Turner and Batey, who were accused of sexual assault and harassment.

From my experience at the Student Advocate's Office, I gained an inside look at how universities handle sexual assault proceedings. On one hand, I witnessed students of all genders, sexual orientations, and races who experienced campus sexual assault, and who were often not believed due to a cultural climate that saw rape as commonplace or blamed victims. The statistics on sexual assault on college campuses are startling. According to the National Sexual Violence Resource Center, one in five women will be raped at some point in their lifetime. Approximately 23.8 percent of females and 5.4 percent of males experience rape or sexual assault through physical force, violence, or incapacitation. The rates are even higher for transgender individuals with about 64 percent experiencing sexual assault in their lifetime. College-aged women are three times more likely to be sexually assaulted than women of all other ages. And the rates of sexual assault on university campuses continue to increase. According to the Association of American Universities' 2019 Survey on Sexual Assault and Misconduct, the rate of nonconsensual sexual contact by physical force or inability to consent increased by 3 percent from 2015 to 2019.

On the other hand, I noticed injustices in the ways due process was afforded to respondents in campus sexual assault cases. I witnessed disparities in the treatment of student defendants based on their race and sexual orientation, stemming from systemic biases.

This Comment addresses several areas of importance. By expanding on my first-hand experience at the UC Berkeley Student Advocate's Office, this Comment: (1) approaches the issue of campus sexual assault from a legal lens, (2) seeks to find the proper balance between victims' and defendants' rights by ensuring victims are being heard and believed, while simultaneously ensuring defendants' due process rights are protected regardless of their race, (3) evaluates the appropriate standard of evidence for campus sexual assault hearings to ensure a fair proceeding for both parties, and (4) examines the due process rights of accused students and the proper protections necessary for victims through the evolution of Title IX.

Title IX, a statute that primarily focuses on gender equality in education, has over its forty-nine years in existence, increasingly been applied to sexual assault and harassment cases in university settings. As Title IX has evolved, the Department of Education has published Title IX guidelines and regulations explaining universities' role in campus sexual assault hearings.

In response to the rising awareness of the national problem of campus sexual assault during the Obama administration, the Office for Civil Rights (OCR) in the Department of Education (ED) published Title IX guidance documents expanding the rights of victims. The Obama era guidelines stated a preponderance of the evidence is the proper standard of evidence in university campus assault hearings. Under the Trump administration, ED revoked the guidance documents set out in the Obama administration and posted new interim guidelines stating universities could choose between a preponderance of the evidence standard and a clear and convincing evidence standard in an attempt to create more due process protections for defendants. These interim guidelines became official Title IX regulations in May 2020, and the regulations went into effect in August 2020.

Since President Joe Biden took office in January 2021, he has been adamant about reforming the 2020 Guidelines put in place under the Trump administration. In March 2021, Biden issued an executive order calling for the Education Secretary Miguel Cardona to “review within 100 days the Education Department's regulations and policies to make sure they comply with the antidiscrimination policy” related to Title IX and to “consider suspending, revising or rescinding any Trump administration rules that are inconsistent with the policies of the Biden-Harris administration.” This Comment provides insights regarding what aspects of the 2020 Guidelines should be abolished, and what aspects should remain and be modified.

This Comment argues that the Trump-era Title IX regulations related to evidentiary standards are particularly damaging to victims' rights. In part, however, some aspects of the regulations can protect the due process rights of defendants by allowing for some form of cross-examination. The right to cross-examination can help ensure that defendants who have not always been given a fair opportunity to be heard, such as Black men, have access to fair proceedings in the college adjudicatory setting. This Comment recommends that the Biden administration overhaul most of the new regulations while maintaining some of the due process protections to create an equitable balance of defendants' and victims' rights in university sexual assault hearings.

Part I of this Comment gives an overview of the evolution of Title IX and explains how Title IX became the guiding force in regulating sexual assault cases on university campuses. Part I also describes the guidelines and regulations set forth for campus sexual assault adjudicatory proceedings under both the Obama and Trump administrations.

Part II examines university sexual assault grievance procedures using the University of California, Berkeley as an example. Part III argues that the preponderance of the evidence standard is the most appropriate standard to use in university sexual assault proceedings to best protect victims.

Finally, Part IV suggests potential solutions to address the weaknesses of a preponderance standard and to help protect accused students' due process rights.

[. . .]

Over the past 49 years, Title IX has been repeatedly modified and adapted through guidance documents and regulations as society's understanding of gender discrimination and sexual assault has changed. Title IX should again be modified to ensure a fair outcome for all parties and to begin to combat the prevalence of rape culture in universities across the country. The campus adjudication model proposed by this Comment--one with a mandated preponderance standard in conjunction with increased due process protections for the accused--must be guaranteed for all students. Although the 2020 Finalized Regulations ensure respondents now receive additional due process protections, such as the right to a live hearing, universities still have the option to use a clear and convincing evidentiary standard that harms victims.

Accused students' due process rights are imperative to realizing fair Title IX sexual assault proceedings in universities, especially given our legal system's history of unfair treatment of defendants of color. But merely using a clear and convincing evidence standard results in a loss of victims' rights. Rather, mandating a preponderance standard for Title IX proceedings, while maintaining other protections for respondents, is the best way to protect both defendants' due process rights and victims' voices.

Brock Turner's case is illustrative of two deeply ingrained problems on college campuses and in American society: racial injustice and rape culture. This Comment's proposed adjudication model that includes a mandated preponderance of the evidence standard and added procedural protections for all students can be the first step toward creating a more equitable campus adjudicatory system for student victims and defendants alike and can serve as a model for more equitable proceedings in the legal system at large.

Laura Perry is a law student at the University of California, Los Angeles.

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