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The growing concern to address sexual assault allegations on university campuses has resulted in a new vigilance to investigate and litigate allegations against students and faculty with little to no protection of the accused person’s fundamental rights. Increasingly students and faculty members accused of sexual misconduct, even absent criminal charges, are being forced to participate in pseudo-trials designed by universities. The accusations being made through these tribunals are often very serious in nature and the universities cannot guarantee that the complainant will not proceed with criminal charges.
Most people who are accused think that they can engage in a rational conversation with investigators or tribunals and put an end to a very serious problem. They trust the university to conduct a fair hearing.
In reality, the universities are following demands from pressure groups and adopting investigation policies that deny the accused the right to even know the accusation before submitting their defence evidence. People are told that they can’t bring a lawyer with them but that they must answer all questions, no matter how unfair, or risk being expelled or employment terminated.
Though retaining a lawyer may seem to be an escalation of what is already a serious situation, hindsight will not erase the damage done by a biased and skewed investigation process.
The due process rights of an accused are not respected in university investigations and the consequences of engaging in these tribunals can be devastating. For a student, the immediate concern over refusing to participate in an unfair process may seem overwhelming but that threat is a mere shadow to the devastation of an unjust outcome in a biased investigation.
The pressure to engage in such a process can be intense but the best thing an accused person can do is to protect their rights. Unlike a criminal court, the university tribunals operate on a balance of probabilities and no meaningful defence can be mounted unless the accused person knows the full accusation in advance and has the benefit of legal counsel.
People who have made the mistake of engaging in university investigations without proper legal advice have found themselves fired or expelled based on allegations they didn’t even know about going into the investigation in good faith.
Unlike a proper court, universities do not have a process for objectively testing evidence and there will be no transcript to rely on for an appeal.
Once completed, the information provided to the investigator and during the course of the hearing before the tribunal, can and often finds its way to police and later in the hands of prosecutors of sexual assault charges.
The process of investigating and litigating sexual assault allegations at a university must meet natural justice principles and cannot simply operate on a basis of compelled cooperation under the threat of expulsion or termination. In addition, there must be a fair basis to provide an accused person with details of the allegations and allow the person legal counsel prior to deciding whether to cooperate with an investigation. As the need to investigate these allegations has been met with much vigor by universities, so must universities seek to align their processes more like the criminal system in order afford fairness to any person accused.