Letter to the Editor: Due process don’ts

I was delighted that the Forum section was devoted to the proposed sexual harassment code on March 1 because it is such an important issue. But it was misleading for The Hatchet to fail to include with my article the specific examples of lack of due process and fundamental fairness in the proposed code.

I hope this letter will make these concerns more concrete and spark additional debate. The following are some of the problems under the proposed code:

The coordinator investigating a complaint may conduct a one-sided and secret inquiry with no hearing and reach a determination that can result in unlimited sanctions.

There is no right to appeal that determination. The accused does not even have a right to see a copy of the coordinator’s determination that he or she is guilty.

The accused has no right to discovery, or to confront or question persons choosing not to testify including the complainant. A finding of guilty can be based solely upon hearsay evidence.

Neither side may require witnesses to testify, even if they are University employees witnessing the event in the course of their employment. Thus an accused cannot require testimony that would exonerate him or her, and a complainant cannot require witnesses who would corroborate his or her version.

The accused student or faculty member cannot see a copy of the complaint, nor to learn who filed it, when and where the supposedly sexually-harassing statement was made, who else allegedly witnessed it, etc. This deficiency can make preparing any defense impossible.

Even after a hearing panel has begun a hearing to determine guilt, the administration can remove any panel member based upon his or her attitude or other factors. This provision is akin to permitting only one party the unlimited right to remove a juror once a trial has begun.

Although both the GW Faculty Code and the American Association of University Professors provide that a faculty member may ordinarily be disciplined only by a panel of his or her peers, the two students and one non-teaching staff member on the panel could judge a professor’s teaching approach “unreasonable,” and therefore find him or her guilty of sexual harassment, even if the two faculty members on the panel strongly disagree.

-John F. Banzhaf III
law professor

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