UA Codes and Judicial Committee

Dear Members of the Cornell Judicial Committee:

In response to the request for comments regarding the Krause report on the campus code of conduct, we would like to submit our suggestions regarding cases that come before the Judicial Administrator specifically concerning sexual assault. We are not commenting on the Krause report as a whole or making suggestions about other types of crimes. Our sole prerogative is to advocate for the better treatment of survivors of sexual assault by the judicial administration system. In saying this, we do not seek to compromise the rights of either party in a dispute, but we do feel that the current system has not always been as supportive as possible for the complainants. These recommendations come as a follow up to a letter we submitted to President Hunter Rawlings in April of last year.

Nearly 1 in 4 college-aged women will experience sexual assault in their lives, and women ages 18–25 are the most likely to be sexually assaulted (Fisher, Bonnie S., Francis T. Cullen, and Michael G. Turner in The Sexual Victimization of College Women, 2000). Sexual assault is the least reported crime in the nation (Bureau of Justice Statistics, 2000). The number of incidents of sexual assault reported on our own campus surely does not reflect the actual number of offenses: Cornell University Police reported 11 incidents of “forcible sex offenses” in 2003 and 8 incidents in 2004 (Campus Watch: Public Safety Information for the Cornell Community, 2005–2006. As we all know, “silence breeds violence,” and unless Cornell University takes a pro-active stance to end sexual assault, the message becomes that the university condones sexually based offenses.

Historically, the legal system in the United States has not offered adequate remedies in sexual assault cases, and as a result, many survivors of sexual assault choose not to report their rapes� quietly living with those experiences instead. Our own Campus Code of Conduct and university judicial system currently reflects some of the shortcomings of our national system. The issues surrounding sexual assault are usually very complex, and frequently pit students against their attackers in simplistic “he said/she said” language and outcomes. Because we are an educational — rather than legal — institution, Cornell has a unique opportunity to support students who might choose to press charges against their attackers by picking up where the legal system fails.

As Cornell students, our goal is to learn. Sexual assault directly interferes with any student’s ability to learn and function in this — and all — university communities. We have heard many instances of Cornell women who have left the university in the aftermath of sexual assaults do to emotional trauma and a sense of lack of justice due to the minimalist consequences perpetrators of sexual assault have faced in the past. It is our greatest hope that the university will demonstrate that it values the retention of those students who have survived sexual assault at Cornell and the rehabilitation of offenders accordingly by revising our policies and practices.

Therefore, our recommendations for revisions to the University’s Code of Conduct and sexual assault policy are as follows:

1. Jurisdiction should extend to off-campus housing and university venues in the Ithaca community. Because of the interpersonal nature of this crime and the ongoing emotional repercussions, the event affects the lives of both individuals as students no matter when or where it occurs. It is essential that the University seek to provide redress for sexual assault incidents that occur on campus and off whether the school is in session or not for all enrolled students.

2. No students should sit on the Hearing Board for sexual assault cases. Sexual assault survivors’ identities should be confidential at all times in support of their healing and recovery process. Survivors should not be subjected to questioning by peers whom they may encounter in their residences, classes, and student organizations and events. Further, it is our belief that if student members of the Hearing Board know either the survivor or the accused, the hearing may be biased.

3. The Judicial Administrative Hearing Board needs to be educated about the complex dynamics of sexual assault and other bias-related crimes. Hearing Board members should have an understanding of the difficulties survivors face when pursuing sexual assault charges, as well as the ways in which societal myths perpetuate blaming victims and excusing perpetrators. The people present at these trials, and those making decisions must have an understanding of the ways in which our culture allows sexual assaults and neglects survivors.

4. The survivor’s sexual history should not be admitted at any point in the hearing. University policy should explicitly state that the victim’s sexual history is not relevant and is not permitted in University hearings. Given that our cultural climate is still prejudiced against survivors of sexual assault, admitting such details would likely only serve to bias the hearing board.

5. No attorneys should be permitted in the hearings for sexual assault cases. Since the hearings are not legal trials, we see no need for the victim or the accused to be represented by attorneys. Because of the interpersonal nature of this type of crime there is rarely corroborating evidence so attorneys can only turn to undermining or trying to discredit the account of the accuser. Thus, because of the emotional trauma of this type of crime the use of legal representation on either side can create an atmosphere that may do further damage to survivors who already have to overcome significant social pressures and stigmas against speaking out. We would like to see instead that the JA work to help the accused understand the severity of such an act for the wellbeing of the individual complainant.

6. No parents or supporters should be allowed to gather and wait in the area outside of the hearing before, during, or after the hearing. All University hearings should be completely confidential and private. This is most crucial in sexual assault cases. Current University hearing practices place sexual assault survivors in the position of having to pass by supporters of the accused — a sports team, family members, or groups of friends — on her way into the hearing room. This creates a hostile and intimidating environment for survivors who have taken the step to pursue sexual assault charges.

7. Mandate sexual assault education on campus. Cornell University must commit its community members and its resources to combating a campus culture of sexual violence. While University orientation programs for first year students have indirectly addressed sexual assault, we have not witnessed consistent, intentional, informed efforts on the part of the University to stop sexual assault and exploitation at Cornell. The University should assume a proactive role and initiate groundbreaking programs that seek to change male and female students’ attitudes and behaviors that result in sexual exploitation of Cornell women. We strongly recommend that the University hire male educator(s) to work with male students to stop sexual assault.

8. Survivors’ input should be sought when deciding the consequences the accused shall face. Because individual survivors have different conceptions of what justice entails it is important to address their concerns to help them heal from the trauma and regain empowerment. Women, and probably men as well, are often deterred from bringing their cases to the JA because they fear either overly severe or insufficient consequences for the accused. Failing to consider their wishes could complicate the recoveries of survivors.

We expect that the university will make its judicial process a less daunting and more supportive process for sexual assault survivors, thereby sending a message that Cornell University does not tolerate sexual violence. It is in the university’s interest to encourage the reporting of sexual assault cases to make this community safe for all students, regardless of gender, sexuality, or race. Members of the Cornell Women’s Resource Center Advisory Board commit ourselves to working with appropriate offices and organizations within the university to reduce the incidence of sexual assault on campus; to support survivors of sexual assault; and to educate our peers about sexual violence on campus. We ask your commitment to examine and change university policies and practices in the above-outlined areas, and to work with us to end sexual assault in our community.

Sincerely, The Cornell Women’s Resource Center Advisory Board Willard Straight Hall, Mailbox #71 (607)255–0015

My thoughts concerning Cornell’s existing University Judicial Code comes from being fully immersed for years adjudicating student conduct cases in Higher Ed - more than fifteen years as a monitor/facilitator of a university judicial system and another tweenty years having responsibility with others providing leadership to ensure that institutional student conduct guidelines and values were adhered to and properly conducted. From this perspective and my close involvement with Cornell’s Student Conduct Code for ten years, I found this administrative process antiquated and cumbersome.

Throughout the numerous student conduct cases and incidents in which I was involved over the years and resulting in adjudication by a university judicial structure, I gained an appreciation for certain principles that I believe should be preserved:

1. Due process must be guaranteed.
2. The outcome should protect the accused and accuser’s rights for a fair and speedy process.
3. There should be an educational outcome in which students learn something that is valued.

Often, I did not find Cornell’s Student Conduct code and process abided by these three principles. The reason is as indicated previously, the administrative process is too cumbersome and unduly complex. As the courts have determined, educational institutions are not subject to legal proceedings when adjudicating a student conduct case. They must only guarantee “due process” by providing a “hearing” which can be conducted by one person or several individuals. Also, that the accused has the right to appeal any disciplinary decision rendered. Unfortunately, at Cornell there are times in which cases go through an elaborate and arduous process in what is viewed as a “trial” setting. Many times it results in students, staff, and faculty being burdened with hours of deliberation when cases could be resolved by skilled mediators in much less time and with fewer repercussions. I have personally witnessed situations whereby students’ education were unnecessarily jeopardized due to the length of time the process took.

Additionally, there is significant conflict created because disciplinary cases cannot be adjudicated in a timely manner due to an overload of cases needing the attention of the Office of Judicial Affairs. This results often in student cases not being resolved for extended periods of time which in turn will be disruptive and detrimental to a community, such as, a residential complex or Greek house. Again, this causes disruption to students’ academic progress and performance. By simplifying the judicial student conduct code process, it would allow for a more responsive and efficient procedure with greater accountability.

One other serious flaw in the current judicial system is when a case is pending in the legal courts, the university will not proceed with a hearing independent of the courts until the court makes a legal determination which can take several months or longer. Understandably, the university can temporarily suspend the accused student(s), but that often does not lead to a fair outcome for the student(s) involved and can be very disruptive to a community. Again, the courts are very clear that a university does not have to wait until legal proceedings take place before a student hearing takes place and a decision is rendered. Since a university proceeding is not a legal process, any decision made by the university will have no bearing on the outcome of the court. If the university would see itself acting independently of the courts, the institutional educational principles and values would be better served. Also, a quicker adjudication would prevent (in a number of cases) less disruption on campus and most importantly I believe students would feel a much greater sense of fair play and resolution.

Cross-posted with author’s permission by Ari Epstein <ate2@cornell.edu>.

I appreciated our brief phone conversation on Monday. Your comments and expression of interest in what I may have to offer is appreciated. I had withheld comments up until now believing that the University would have ample perspective, input, and intelligence to sort out the various issues and make appropriate changes to the recommendations in the report, and the process, policies, and procedures now employed, pursuant to the Campus Code of Conduct.

Having said that, perhaps the perspective I bring from my work during the initial stages of the Campus Code of Conduct, when I was involved from 1972–1973, and the several decades of watching it evolve, and providing legal representation to students brought before it may be of some use.

As always, there are far too many issues for any single response to address. So I will focus my comments on three: The right to remain silent, the right to counsel of one’s choosing, the impact that suspension or expulsion has in contrast to criminal sanctions. Another day and in a different conversation, perhaps I could offer thoughts on other aspects of your important work.

1. The Right To Remain Silent: In a startling number of instances the factual pattern alleged against students may constitute a felony. (e.g. Stephanie’s Law, drug possession, arson and assault, and even possession of a forged instrument [e.g. False ID]). If guilty of the most serious aspects of these types of allegations, it is hard to have sympathy with the perpetrator. However, as every attorney knows there are always two sides to every story. There might have been provocation, self defense, or quite simply: wrong or bad facts. In any event, these students are confronted with the potential of a Grand Jury Indictment and Felony conviction for the alleged acts. In that instance, none would dispute their need for an attorney, and most would agree that the right to remain silent is a critical constitutional protection. Whether one believes and adheres to the rulings pursuant to Miranda, this important Constitutional right can be easily eroded during the early stages of an investigation and appearances before officials. Put simply, most of these same students are good people who want to do the right thing. Therefore, their instincts and training are to cooperate and acknowledge facts and circumstances that can easily undermine and perhaps negate a valid defense.

In the dozen or more cases that I have represented students before the Judicial Administrator I am pleased to report that the JA has carefully advised the student, if counsel had not yet been assigned or retained, of that right to remain silent. When it was invoked no umbrage was taken out of respect for that student’s need to follow the advise of counsel. In fact, it has become standard practice for the JA to defer for several months or longer while the criminal defense attorney pursued the matter in the local courts.

Once the matter is resolved, and it is quite common for these to be plea bargained and negotiated to either a dismissal, ACD, reduced charges or consequences, then the student, with advice of counsel, is free to cooperate fully and disclose openly the incident, including both sides of the story, and endeavor to negotiate a resolution with the JA (Currently such a resolution is called an SDA). The student also may choose to exercise the right to a hearing before a panel of the University Hearing Board.

The suggestion that students should be forthright and candid, and denied a right to remain silent, simply because they are under a “contract” with the university that incorporates by reference the Campus Code of Conduct, ignores this precious constitutional right. Any statements made, whether admissions or simply a statement of their version of the facts or circumstances, is readily subpoenaed by the prosecuting attorney and never accorded the protection of Attorney Client Privilege, or any other privilege. While rarely invoked, the mere threat or concern that the prosecuting attorney can subpoena and bring to bear admissions or statements made to the JA or investigating officers of the Campus Police, will dramatically effect the proceeding in our local courts and the ability to resolve them benefitted by the constitutional protections afforded by our right to remain silent.

In summary, this right should never be eliminated, even in the arena involving a student and the university and the enforcement procedures for its’ Campus Code of Conduct. [On another occasion, I could discuss the expanded concerns as the Campus Code of Conduct and its’ jurisdictional limits are potentially expanded to off campus incidents. I had one instance when the allegations occurred in Arizona, yet the JA claimed the University had jurisdiction, and she had a good arguable point in that regard.]

2. Right to Counsel: When seen in the context of minor offenses and minimal consequences, this right may seem a “nuisance”, but I suggest it is a necessary and valid right that should be respected, and that in most instances it leads to an efficient resolution, not to mention one that I feel is required by current interpretation of constitutional law.

Historically, private colleges and universities have provided a procedure for review of alleged campus misconduct, but precluded the student from having access to counsel of her choice. Meanwhile, private colleges have been held to a higher standard pursuant to the 14th Amendment and the concept of State action. Other commentaries and court cases have provided better analysis of this topic then I can in this letter. However, suffice it to say that the mandate for a right to counsel, even in public colleges is limited in several respects. However, the analysis provided recently by Judge Kahn in Holmes v. Poskanzer (1/19/2007 NYLJ 28, (col. 1), copy attached, provides a helpful summary of past cases. In particular, our Second Circuit, has not recognized any absolute right to counsel, but has addressed special concerns when the student is facing disciplinary action for an act which constitutes a crime in that State. Moreover, the courts have distinguished between the right to consult with an attorney, and the right to have an attorney accompany, and a right to have an attorney represent them at a hearing.

Regardless of the Constitutional and carefully defined legal specifics regarding right to counsel, I suggest that the value far outweighs any potential harm or burden to the University. As noted below, the consequences of suspension and expulsion are traumatic, egregious in the minds of students and parents, and are of enormous financial consequences. The cost of tuition, fees, interrupted housing, and other academic and living costs are tens of thousands of dollars per semester. The impact and trauma on the family and student could and should be benefitted by the advice of counsel, even if the advice is to accept the determination of the panel or the Judicial Administrator’s recommendation.

The major concern, as noted by Judge Kahn and the Second Circuit is the need for coordination of the client’s representation in criminal court and the defense of the disciplinary proceeding on campus.

Most important, experienced counsel will assist the Student and the University in not only expediting the proceeding, but clarifying the process and the options for the student. Attorneys are not just obviscaters and delayers of a perceived rightful outcome. Instead, they can help sort out fact from fiction, clarify procedure, advise their client, and facilitate an administrative proceeding. Too often the perception is that attorneys will require a full blown trial, with formal rules of evidence and procedure. That is simply untrue. Experienced counsel knows full well that every adversarial proceeding has different rules of evidence and procedure, and that they must comply with them in their effort to represent their client.

3. Comparative Impact of Sanctions: The primary concern of criminal defense attorneys is to minimize the potential criminal record and sanctions imposed on their clients. If a plea or finding of Not Guilty is unavailable, then reduction of the charges to minimize the stigma and future impact on a student’s record is a high priority. Up until recently, the potential University sanction was deemed a secondary concern, and was often left to the student and parents, alone or with minimal assistance and involvement of an attorney.

However, more recently (in the late ‘90’s) there has been a shift of concern and priorities from this more traditional analysis. Students and their family have expressed grave concerns over the potential current and future impact of University sanctions; even more so then potential criminal sanctions or records. In one instance a student/defendant opted to spend 30 days in jail, in hopes that such a sanction, along with a misdemeanor conviction would pursued University officials to reduce a proposed sanction from dismissal to a semester suspension. He was that committed to pursuing and completing his academic career at Cornell. He was highly successful in his academic achievements and expected to enroll in a prestigious law school, despite the conviction. (A misdemeanor conviction does not preclude enrollment in law school or the practice of law, or any profession). In sum, he preferred a misdemeanor conviction and jail time over suspension from Cornell.

In several other cases, I became aware of this startling change in perspective. These students had devoted years of their young life to securing admission to Cornell; several years attending and succeeding at Cornell; and were focused on graduate degrees and a career in which they perceive graduation from Cornell as the pinnacle. This perspective suggests that these students can be highly motivated to give serious attention to probation, education, and other sanctions while remaining at Cornell, rather then suffer suspension or expulsion. Nonetheless, I have noticed a greater willingness on the part of the Judicial Administrator to recommend suspension or expulsion to a panel, or negotiate it in their SDA’s.

If my observations reflect a broader mind set of today’s students, then the implications of the sanctions and the procedures under review merit greater scrutiny. While I may not concur that suspension from Cornell University has the disastrous consequences feared by some of the students, the economic consequences alone can be staggering, and the trauma and anxiety that accompanies these sanctions may be far greater then what has been understood and appreciated in the past.

Cross-posted with author’s permission by Ari Epstein <ate2@cornell.edu>.

I wanted to share with you guys particularly some comments that I posted to the site regarding IT perspectives on the draft code. I will only copy the outline of concerns here, but was wondering what, in your opinion, is our best approach to address these matters, which are different in kind than the concerns from the community at large. We, Pat McClary and I, do not have any procedural concerns, only substantive per what is below.

Thanks, and look forward to talking with you.

Best, Tracy

I. Section I Make citizenship an explicit statement in section (A) of the General Principles. (Pat agrees that the “freedom with responsibility” is a subset of citizenship, individualized and a bit dated in its resonance.) Moreover, explicit mention of the concept in the beginning of the General Principles will fit nicely with section III which begins to address that topic more specifically.

2. Section III (A) (4) Reframe the prohibition against “videotaping, photographing, tape recording…” to one concerning the specifically objectionable behavior: intrusion upon seclusion, invasion of privacy, misappropriation of likeness rather than a prohibition against the technology per se.

3. Section III (J) Restate the compliance with federal, state and local laws section as not singularly focused on alcohol and drug abuse, but in regard to a number of enumerated issues, to which “intellectual property” will be added (making it its own category, instead of how JA currently categorizes it as “theft.”)

4. Appendix There is a whole section on “misuse of computers and network systems” which draws on very old policy language (Policy on Abuse of Computers and Network Systems, 1990). I will take a crack at a first draft of a completed updated revision of this section including incorporation of the entire IT Policy Framework and perhaps with emphasis on more contemporary concerns such as information security.