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Balancing Rights In College Sex Assault Cases

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Balancing Rights In College Sex Assault Cases
Balancing Rights In College Sex Assault Cases
Balancing Rights In College Sex Assault Cases GUESTS:Domenic Lombardo, criminal defense attorney Wendy Patrick, sex crimes prosecutor

This is KPBS Midday Edition. I'm Maureen Cavanaugh. It is Paula from the discredited allegations for our universities being pressured to crack down on any allegation of rape on campus? Two men of accused of sexual misconduct in San Diego are suing the universities. At issue is whether UC San Diego in San Diego State allowed the men to process to defend the charges before they were suspended by the school. Joining me is attorney Dominic Lombardo defending the student. And Dominic a, welcome to the program. ________________________________________ Think you for having me. ________________________________________ Attorney Wendy Patrick is here and she is a sex crime prosecutor. ________________________________________ Think you. ________________________________________ Dominic, tell us when send -- Francisco learned that he was being accused. ________________________________________ It occurred when he was arrested in early December -- December 9, I believe. He was released immediately on bail. ________________________________________ University notified him shortly thereafter that he was subject to a separate proceeding here involving disciplinary and title IX proceedings. ________________________________________ For the allegations? Forcible oral copulation and false imprisonment. ________________________________________ Was he charged? ________________________________________ ________________________________________ [Captioner reestablishing connection. One moment.] He has no intention of returning. What is at stake is an expulsion, a public approval -- reprove will -- a blemish that will follow him in his career and academic trajectory for ever. He is an exchange student from Portugal from a good family. He never had any prior criminal problems. Certainly no disciplinary issues. Straight a student. If he loses the preceding -- we will call it losing -- and suffers a blemish he will -- the fallout will be tremendously impactful and he will lose his standing at the other University and they will be a minute hold on his transcript and he will suffer the stigma that will follow him wherever he goes. ________________________________________ Wendy Patrick, when a student is arrested on a sexual of chart -- sexual assault charge, is a suspension automatic? ________________________________________ Many different things are taken into account. What is important to stress is that the listeners and the people at the school or in society think that an arrest is an arrest. The deal is that there are disciplinary proceedings that any college campus and Institute that is separate and apart from criminal proceedings. It's important to stress this because we are talking about different burdens of proof -- I will use an example of the Yes means Yes law. It is a preponderance of the evidence -- if it is a campus disciplinary proceeding if it is criminal court it is beyond a reasonable doubt. There are different goals and methods. There are different issues of confidentiality. That is huge. That is one of the reasons that many victims don't report it. That is what they are afraid of. ________________________________________ I will ask you to break this down as we continue our conversation. Just to be clear, when the DA dropped the charges as they did in this case, it doesn't necessarily follow that the student suspension will be -- he will be released from suspension and he will be admitted back to the school? ________________________________________ In any case -- this is a nationwide concept of -- if any prosecutor's office decides for whatever reason not to pursue a case, that doesn't necessarily mean that it will and the dissonant plenary sitting partially because of the different standards of proof -- I higher proof in criminal court and a lower standard disciplinary wives. ________________________________________ Most of the lawsuits revolve around alleged lack of due process accorded just before that the accused. How are the rights of an accused student different in these proceedings than they would be in court? ________________________________________ The rights of the student are governed by both. Obviously everyone has constitutional rights and due process rights at issue in the criminal courts. As a lot of policy issues that are also an issue in disciplinary proceeding. So the student always has rights. They always -- everything he wants to maintain the rights. But there are significant differences. There has been a lot of misconception around the yes means yes law enacted at the beginning of the year. The reason as that it doesn't affect the Penal Code. It is an amendment to the education code. It also spells out both an accuser and a victim is entitled to. It's important to know what the law says because it is different from rights afforded by the criminal justice system when somebody is formally charged with a crime -- violating the Penal Code. It's important to split these apart and understand why different defendants and suspects are on the one hand subject to discipline by the school and on the other hand subject to discipline by the reports indicated gets that far. Member, some victims elected to keep it in-house. ________________________________________ Dominic, part of the lawsuit that you filed on behalf of the student in question I believe revolves around getting information from the school about what exactly the allegations are. Is that right? ________________________________________ Correct. To take a step back, the terminal justice model -- excuse me -- the model that we are all familiar with simply has no applicability in these disciplinary proceedings. We're not talking about a public venue. There is no right to an attorney. There's no full exchange of the element documents. You have no subpoena power and no rights to competition. Certainly no jury trial. The burden of proof is not beyond a reasonable doubt and you don't have that the amendment rights. And there are no formal rules. The students, the listeners thing attention here, particularly the students, should review the plenary proceeding rules and I think many of them will be surprised by what they find. ________________________________________ Do you think it should be changed wax it should be more like a criminal court? ________________________________________ I think it should be more like a criminal court. Things were revised substantially in terms of how these proceedings should be conducted last year in June in 2014. The pendulum has swung so far away from due process and meaningful opportunity to challenge evidence that think a high school student could design a more meaningful process. My bigger concern is the integrity with the outcome among particularly when we talk about expulsion and permanent blemish. To ensure the integrity -- basically, we have an exchange of information and inform the student fully as to what he is being accused of and provide statement to the witnesses and to this in a timeframe that will allow the student a meaningful opportunity to challenge this. Finally, have the investigation conducted in a full, fair, and open manner. None of these things are occurring in my client's case. ________________________________________ Let me ask you -- a lot of the changes that Dominic refers to have taken place because of traditionally a bad way -- many universities have handled sexual assault allegations. Hasn't the burden traditionally been on the victim to force the school authorities to take action? ________________________________________ In some cases that would be one of the arguments made because we've seen such a shift -- and pendulum swing and the attention we are giving the cases -- a good thing across the country -- everybody has got involved. Sexual assault remains one of the most underreported crimes in the world. That is true on college campuses. I'm glad we are having this discussion. The ongoing dialogue is touching some of these issues. Are going to make it upon a yes means yes versus she didn't say no -- would be surprised if some states follow suit. To get a close look at what sexual consent looks like in the heat of the moment and in retrospect and foresight. We're taking a look at what the victim's role is and how much a part of that the suspect should play as well. ________________________________________ From what Dominic is saying he is even asking the question -- colleges and universities are equipped to handle these kinds of cases -- what would your taken be on that? ________________________________________ They will have to get equipped because now that we've got this affirmative consent standard in California I would be surprised if we thought another place. They will have to -- more than a training issue -- a practical issue. Because it is so murky to try to decide what does or doesn't mollify. One of my good friend, LeAnn Rimes -- it is still in progress -- how to use this as a tool to help people understand consent. Even cases like that were it's unclear whether someone is consenting -- the conversation -- the fact that students are encouraged to have the conversation -- we hope this will go a long way toward preventing misunderstandings that may lead to sexual assault. ________________________________________ So, how do campuses and police departments get equipped? Really, by what we are talking about -- learning more about the problem and the objections and argument on both sides and hopefully working together to resolve system where we can easily distinguish the cases up to lack of consent and cases of misunderstanding. ________________________________________ Yes, Dominic has been quoted as saying you expect more students around the country to claim they've been wrongly accused. Why do you expect to see that happen more often? ________________________________________ Think it will happen without a doubt. First, it's a goal to clear every species of campus violence of the universities. Expect many more students will be subject to an inquiry in these proceedings. The problem is the lack of basic process involved. This means many students will be subject to all complaints and have no other recourse but to bring it to the court. After the disciplinary proceedings are conducted. As they lack meaningful opportunity to challenge their accuser or with evidence on equal footing. ________________________________________ Part of this -- from your point of view if I understand it correctly -- many -- the new wave of prosecutorial zeal on campus is being pushed by the federal government and the funding schemes. ________________________________________ There is no doubt about that. The federal government made clear through different policy pronouncements and resident Obama last year mandated that the universities get in line with limitation of title IX policies and procedures or else they can take their hands out of the federal cookie jar. That was made abundantly clear and the universities snapped to attention and heard this loud clear there were various executive orders promulgated by the Chancellor of this university completely revising how these plates are handle. It's true that the procedure is much more complaining witness friendly. Much more. That's a good thing. However, the other side of the coin is that they watered down the rights of the accused to absolutely no meaningful level. ________________________________________ Let me get your take on that. ________________________________________ One thing that I hope we don't see come out of this discussion -- when I say discussion I mean the nation what discussion -- victims being afraid to report they were sexually assaulted. That's what I worry about. They will think five report anything I'm going to be seen as a false accuser. That would be a horrible thing. A collateral consequence of the conversations going on in the country and terrible because it is hard enough encourage young women that are been sexually assaulted to come forward. When they already carry the burden of being afraid they will be the ones on trial and everybody is crying foul and it could be a false complaint. It will be more reluctant to come forward. Hope this doesn't happen because only when sexual assaults are reported can we take further steps to solve the problem in make campuses safer for everyone. ________________________________________ What would be how to balance these two conflicting rights? The rights of someone who says he or she has been sexually assaulted on campus and the rights of the person who has been accused? ________________________________________ That's one thing that many law enforcement agencies are talking about. It's not just a training issue although that's part of it. Investigative procedures are key dust collecting the evidence as fully as you can, cooperation between agencies. However, it's important to give a sexual assault victim the help they need. The support. The understanding. The reassurance. The counseling. Whatever it is. That supportive environment can serve at least in part to counteract some of the blowback that occurs sometimes when you get these bombshell allegations made and there is a lot of suspicion being cast upon the victim as a result. It's not fair. Anyway that we can balance the conflict in rights of the accused and the victim would be a good thing. We are working together to figure out how to balance that. ________________________________________ How would you balance those rights, Dominic? ________________________________________ It's simple. There are 2 measures that should be undertaken. Number one, allow attorneys access to the right to participate in the process. This can be accomplished without intimidating and complaining the witness -- intimidating the witnesses are persons of interest in the investigation. ________________________________________ Number 2 -- allow the accused the right to obtain and review the witness statements and information used against him or her. These things can be accomplished in a way to protect the confidential and identifying information of student witnesses and promote more balance and fairness in the process. These simple changes. ________________________________________ Thank you. I'm out of time. I have been speaking with Domenic Lombardo and Wendy Patrick. ________________________________________ Thank you.

College campuses around the country have been slammed recently for their handling of sexual assault cases. Some rape victims say the campus judicial process is not transparent and leaves them feeling vulnerable.

But the suspects in some of these cases also have complaints with the college judicial process. They say they can be punished by their school, suspended or expelled, even if no criminal charges are filed against them.

As campuses scramble to do a better job dealing with assaults on campus, are they trampling on the rights of the accused?

San Diego County sex crimes prosecutor Wendy Patrick said part of the problem is the murkiness of the laws. For example, the “yes means yes” law, which the Legislature approved last year, requires "an affirmative, unambiguous and conscious decision" by each party to engage in sexual activity. But the law only applies to college campuses and doesn’t mean much in the courts.

“There have been a lot of misconceptions on this ‘yes means yes,’” Patrick told KPBS Midday Edition on Wednesday.

The differences in how campuses and courts treat sexual assault claims prompted a lawsuit by Francisco Sousa, a 20-year-old student who was accused of sexual misconduct at San Diego State University. Sousa was arrested in December, but the charges against him were later dropped. Still, he was suspended from the university.

“He’s not facing criminal charges. The case was rejected,” said Sousa’s defense attorney, Domenic Lombardo. “What’s at stake is far more important to Francisco than returning to the university. What’s at stake is expulsion — something that will follow him and his career forever.”