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DEBRA CASADONTE GELSON, J.D.
Certified Criminal Trial Attorney
418 French Royale Circle
Atlantis, Florida 33462
June 2, 2015
Dear Leader in Higher Education:
I am writing you regarding the mandatory deadline of July 1, 2015
as the effective date set by the U.S. Department of Education for full
institutional compliance with the VAWA amendments.
On July 14, 2014, the U.S. Department of Education sent all
institutions of higher education a second “Dear Colleague Letter”*
reminding institutions that they must submit their annual security reports
(ASRs) prior to the effective date 0f July 1, 2015 and “to specify in their
ASRs the procedures that will be followed once an incident of domestic
violence, dating violence, sexual assault or stalking has been reported,
including a statement of the standard of evidence that will be used during
any institutional conduct proceeding arising from such a report”.
The U.S. Department of Education has mandated that institutions
of higher education report in their July 1, 2015 ASR’s what disciplinary
“procedures” will be used by the institution in VAWA offenses as well as
what “the standard of evidence” will be used. Institutions have been
scrambling to meet the VAWA requirements but continue to use old
student conduct disciplinary hearings utilizing faculty and/or student
panels to determine whether a rape had occurred. This has caused great
controversy among legal scholars and legal professionals resulting in the
filing of numerous law suits against institutions of higher education. With
the effective date of July 1, 2015, if disciplinary hearings alleging sexual
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assault are not implemented with significant procedural due process due
to the “state action” of federal laws such as VAWA and FERPA, the
filings of law suits will sky rocket.
VAWA has effectively created a new category of student conduct
offenses and placed the responsibility directly on the institutions of higher
education to handle very dangerous and volatile offenses, which by their
very nature, could easily escalate to a tragedy. It must be remembered that
rape is a crime of violence, not one of passion. An individual who
commits rape does so due to the thrill of overpowering or frightening a
victim, not the sexual activity. Sadly, statistics will show that once a rapist
realizes that type of thrill, it becomes addictive and the rapist becomes a
predator. Batterers in domestic violence follow a similar profile. The
informal disciplinary hearings which are presently being used by
institutions of higher education are simply unacceptable to address the
serious and dangerous offenses set forth by VAWA. Those offenses
require a full and fair hearing conducted by legal professionals in the field.
Similarly, FERPA, specifically provides an exception to the
protection of student records to allow third parties to access any
disciplinary information of a student who was disciplined for any “violent
offense or non-forcible sexual assault”. Effectively, FERPA provides less
protection to a student found responsible of a violent crime or sexual
offense in a disciplinary hearing with little to no due process than a
criminal defendant convicted of a sexual offense beyond a reasonable
doubt with all inherent due process under Megan’s Law. As a result, any
ability for an accused to defend him or herself is stripped away as an
accused would be foolish to make any statement in his or her defense for
fear that law enforcement may use that statement to bring criminal charges
even though there had been a prior determination not to.
I am a certified criminal trial attorney, former Director of a Sex
Crimes Unit, criminal defense attorney and jurist for over 30 years. My
entire career has involved dealing with thousands of victims and
defendants in sexual assault cases. During my career, I have witnessed
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and defended many young men who were falsely accused of rape due to
angry or unstable women using the cry of rape as a weapon. At the same
time I have prosecuted cases where victims were so traumatized they
required years of therapy. The reality is that no matter what the outcome,
the lives of both the accused and the alleged victim will be changed
forever.
Sexual assault cases are by far the most difficult cases to try due
to the very nature of the offense itself, particularly when determining
whether an alleged victim was capable of knowingly consenting to sexual
intercourse. Sexual assault cases often involve expert testimony regarding
forensic evidence, medical records, blood alcohol and drug testing, and
rape kits.
In addition, the hearings may also involve complicated challenges
to evidence rules which were adopted to protect and support the victims
and only pertain to sexual assault cases known as the Rape Shield Law
and the Fresh Complaint Rule which is an exception to the hearsay rule.
A pre-hearing determination must be made by the judicial hearing officer
as to whether a victim’s prior sexual history may be introduced at the
hearing as well as testimony regarding the victim’s first report of the
assault may be introduced into evidence which would normally be
excluded as hearsay evidence.
Due to the complicated evidentiary issues in a sexual assault case,
I strongly recommended that the hearing should be heard before an
independent former judge with experience in sexual assault cases. In
addition, as the hearing should be conducted with full due process, which
is why I also recommend that both the Complainant and Defendant be
represented by skilled trial attorneys. For both the alleged victim, and the
accused, the stakes could not be higher… and no matter what the outcome,
their lives will be changed forever.
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As a result of the lack of guidance from the U.S. Department of
Education and the upcoming deadline, I have authored a “Best Practices
for Institutions of Higher Education Conducting Student Disciplinary
Hearings in Cases Alleging Sexual Assault”. My sincere hope in creating
this “Best Practices” manual is to put an end to the controversy and
provide a uniform procedure for use by all institutions of higher education
which will satisfy the U.S. Department of Education by providing a full,
fair and impartial hearing. In addition, the procedure I have outlined will
provide the requisite due process protection for all parties and
significantly reduce the onslaught of litigation which are being brought
against the universities and colleges throughout the nation.
It is clear that a student enrolled in an institution has property
rights to his education which afford the student procedural due process
under the Fourteenth Amendment of the United States Constitution as
“[N]or shall any state deprive any person of life, liberty or property
without due process of law… U.S. CONST. amend. XIV, Sec. 1.
The United States Supreme Court first recognized a student
property and liberty interest in Goss v. Lopez, 419 U.S 565 (1975. Goss
involved conduct warranting a 10 day suspension but held that those
students were entitled to due process protection, at 576. In the case of
Board of Curators of the University of Missouri v. Horowitz, (435 U.S. 78
(1978) the Court distinguished the due process afforded for academic
cases as less stringent than disciplinary. Id. at 86.
I submit that in light of the duty imposed on institutions of higher
education by VAWA, the high likelihood of expulsion if the accused is
found responsible for such serious offenses, the lack of protection under
FERPA which will result in the student suffering a lifelong stigma as a
rapist, institutions must now adopt formal disciplinary hearings which
afford the accused full due process rights through a fair and impartial
hearing conducted by experienced legal professionals in the field.
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I have recently reviewed the institutional proceedings published
on various websites of numerous colleges and institutions and I was
greatly disturbed. Many institutions continue to utilize lay faculty or even
a panel of students as the triers of fact who have no experience in sexual
assault cases, rules of evidence or how to apply the appropriate standard
of proof. Other institutions have their Title IX investigator determine the
outcome. Both scenarios represent a clear appearance of impropriety due
to conflict of interest. Further, the websites I reviewed were devoid of any
substantive or procedural due process when addressing the disciplinary
hearing. That, coupled with the clear conflict of interest by having
employees of the institution acting as the trier of fact, are
leaving institutions of higher education wide open to potential litigation.
The format of the ”Best Practices” hearing I am proposing would
be conducted by skilled legal professionals which would include a former
judge, experienced in sexual assault cases, to serve as the judicial hearing
officer and trier of fact. Further both the alleged victim and the accused
would be represented by experienced counsel. The hearing would be
conducted pursuant to the Federal Rules of Civil and Criminal Procedure
and Federal Rules of Evidence, as well as affording the accused his/her
constitutional rights to remain silent, to an attorney and to confront
witnesses under Crawford v. Washington, 541 U.S. 36 (2004) thereby
insuring the accused full due process. Most importantly, the afore-stated
procedures will insure that justice will be served.
Some legal scholars are asserting that the civil standard of proof
which should be applied is that of “clear and convincing evidence”. I
respectfully disagree. The standard of clear and convincing evidence is a
very high civil standard which I used when I served as a superior court
judge temporarily appointed to serve in the state mental hospitals. At that
time, I presided over hearings where I listened to expert testimony and
determined whether or not the evidence presented established by “clear
and convincing” evidence that the patient was a danger to himself, others
or property and should remain involuntarily committed in a locked mental
health facility against his/her will.
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It is my belief that the standard of proof should remain as a
preponderance of evidence. For although rape is a very serious offense, it
is still a civil case involving a loss of property. Taking it one step further,
even in a civil court of law, the rape would be considered a civil “battery”
and the standard of proof would still be by a preponderance of the
evidence.
I am sure that institutions are concerned about the cost of having
legal professionals involved, however, most institutions have faculty who
have a law degree or law school with an attorney who could prosecute the
case, and all local bar associations have attorneys available required to do
pro bono work and could represent the accused. The only cost to the
institution would be for the Academic Judicial Hearing Officer and any
necessary training. I submit the aforementioned costs are far less than
defending against any potential litigation, not to mention the cost of
negative publicity
I am available for consultation, trainings, or to serve as a judicial
hearing officer, should the need arise.
Thank you for your attention and kind consideration regarding this
matter, and if you should have any questions or concerns, please do not
hesitate to contact me at 732-239-9230 or dgelson@aol.com
Very truly yours,
DEBRA CASADONTE GELSON, J.D.
JUSTIA, L.L.C.
*Copyright 2015
