The Case for Due Process

by Dave Gacioch | 11/19/99 6:00am

In a letter to the community dated November 15, 1999 dealing with recent incidents of anti-Semitism, Dean of the College James A. Larimore assured us that "...the College will follow its own rules of due process in pursuing any disciplinary action and will diligently work to ensure that the process is fair." I truly hope that that is the case, because the next few paragraphs will describe to you a recent disciplinary action in which the College did not follow those rules and which was decidedly less than fair.

Let me first set forth my frame of reference. I have only spoken to the student defendant in this case and to a witness who testified on his behalf. Thus, I will not pretend to offer an objective nor an informed viewpoint on the facts of the case itself. In truth, those facts don't concern me at all. Whether or not the actions of the student in question met the College's standards of Tier II sexual abuse for unwanted touching, he was entitled both by our sacred common law tradition and by the College's written policies to a fair and unbiased hearing. He received neither.

Let me further say by way of background that I have spent significant amounts of time during my Dartmouth career learning about and considering issues related to sexual abuse on campus and to disciplinary actions stemming from the Committee on Standards (COS), Dartmouth's judiciary. I submit to you that I am minimally qualified to discuss both in an informed manner.

In the case in question, a member of the Class of 2000 was brought before the COS by two female members of the community who each alleged that he sexually abused them on separate occasions through unwanted and non-consensual sexual touching. No party claimed that actual intercourse had occurred. Clearly this fact does not excuse any alleged behavior which occurred but it does lend some evidence of the degree of the offenses. Again, I shall not pretend to offer objective nor informed commentary on the facts of the case and/or whether those facts met the standards of sexual abuse.

What I shall comment on, though, is a decision made by the Office of the Dean of the College which prevented the student-defendant in this case from any hope of receiving a fair and unbiased hearing. Despite numerous requests from the defendant, the Office decided to seat a single COS panel to hear both allegations, one right after the other. The members of the panel received, as is COS practice, information packets detailing the evidence to be offered in each case simultaneously.

When the student defendant had protested that consideration of the two allegations by the same COS panel created bias, the Office of the Dean had assured him that a cover letter would accompany the information packets which strictly admonished the panel members to consider each allegation in the absence of the other. I submit that even in the presence of such a letter, the fairest and most able members of our community could not completely put aside their knowledge of each allegation when considering the other. In reality, the cover letter was tardy, and was not delivered to the panel members until well after they had received and been able to consider the allegations and purported facts of both cases.

Mirroring to some extent our criminal justice system, COS process, as outlined in the green pages of the Student Handbook, includes a regulation which permits a COS panel, after already finding a defendant responsible for a violation of College standard, to consider that person's past record at the College in imposing a punishment. It seems to specifically prohibit consideration of such a record as a part of the panel's initial determination of "responsibility" (i.e. guilt/innocence).

The reasons for this are entirely sound: past actions possess no probative value when used to make it more or less likely that a present allegation is well-grounded. Their ability to unduly bias the finders-of-fact against the defendant has been shown to far outweigh any relevance they may possess. And I am currently speaking only of allegations which have been proven already. There is certainly no precedent for allowing a finder-of-fact to consider mere unsubstantiated allegations in determining the responsibility of a defendant for a different violation.

That, unfortunately, is what occurred in this case. The erroneous procedural decision of the Dean's Office allowed the COS panel to consider each allegation in the knowledge that the other existed. It further allowed the same panel of COS members to consider both allegations in direct succession, including hearing testimony from one of the women in support of the other's case. I hold great confidence in my fellow members of the Dartmouth community to make judgments as sound and fair as possible. I know all three of the student members who sat on that COS panel, and have great respect for each. However, I respectfully submit that the procedural decision I have discussed irrevocably poisoned the consideration of all involved, despite their best efforts to prevent it from doing so.

In the end, after finding the defendant responsible for both alleged violations, the panel took the completely unprecedented step of voting to separate the defendant from the College.

A resounding blow for the survivors of sexual assault was not struck last week. Instead, a young man with no previous disciplinary problems and a glowing academic record was handed a decision which will change his life forever. He may well have violated the standards of our community; I certainly cannot say one way or the other. But more important, he was not given a fair and impartial chance to prove that he did not. He was denied that opportunity by a Dean's Office which made an ill-considered decision and then refused to reverse itself for reasons only its leaders know.

My heart goes out to the supposed abuse survivors in this case as well. Their lives have also been changed by the events of this case. Their allegations may have met the College's standards on their own merits. Unfortunately, the Office of the Dean zealously ensured that we shall never know. If and when the defendant takes legal action against the College, I am confident that the COS' decision will be vacated due to the arbitrariness and capriciousness (the legal standard) with which the Office made its procedural decision which so evidently poisoned the result.

I am saddened by the effects I foresee such a legal rebuke having on the cause of increased awareness and decreased tolerance of sexual abuse at Dartmouth. That cause was not advanced by a decision marred by such a cutting of procedural corners. I hope that it was not irreversibly stymied.

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