Regarding “Khan case highlights difference between UWC, criminal court”

This is by far the best, most articulate and balanced article on the issues raised by the Khan case I’ve seen to date. Hailey Fuchs has identified the key to the perplexing and confounding problems and injustices arising from amateur triers-of-fact attempting to sort out complex factual disputes involving life-altering consequences using a feeble burden of proof — in short, your typical Title IX process.

Justice and a just result arise from a proper balance between the nature of the charged offense, the appropriate burden of proof and the severity of the punishment options and outcomes. For example, there are appropriate distinctions made in our law as to civil cases tried before a small claims court, a municipal court or a superior court. Criminal cases also are assigned to different types of courts depending on the nature of the accusation. Each of these civil/criminal courts operates under different rules with increasingly severe punishments available. The military criminal justice system (the Uniform Code of Military Justice) fine-tunes these distinctions even better than our civilian criminal system. Under the Uniform Code of Military Justice, options range from administrative (Article 15) proceedings where possible punishment is minimal with a balancing weak burden of proof all the way to general courts-martial where the penalty can include death coupled with an extremely strong burden of proof/procedural safeguards.

The common thread in both civilian and military criminal systems is the right to an attorney and the fact that there is no presumption of guilt at any level. Except in Article 15 administrative cases, the accused has a right to confront witnesses against him or her in open court.

The problem with Title IX is that all accusations, regardless of severity, are lumped into a single, monolithic and myopic system. Worse yet, all accused are essentially deemed guilty until proven innocent, and the accused is placed at risk of punishments that range willy-nilly from a slap on the wrist to permanent expulsion from school and a lifelong brand of “sex offender”. The accused is not even given the right to confront witnesses or to have legal counsel.

Title IX and its less-than-helpful federal guidelines need to be revised so that there is a just and rational mix-and-match of the severity of the accusation, the burden of proof, open or closed proceedings and the possible punishments. The accuser should have the right to select which level of punishment she or he deems appropriate, accepting the fact that the more severe the punishment potential, the heavier the burden of proof and the increased likelihood of the facts being aired in an open court or open proceeding with witnesses being cross-examined by counsel.

The Khan case is exemplary. As is proper with a criminal charge as severe as rape he was tried before a jury, represented by counsel and protected by a very high burden of proof. Based on the evidence reported his acquittal was a foregone conclusion. Why the state prosecutor chose to bring this to court remains a mystery. We learn nothing about the infirmities of Title IX from Khan’s criminal jury trial.

The question remains, will Yale let him back in?  He was expelled for rape, a finding that has been rendered at best dubious based on the evidence presented at trial. Does the evidence warrant expulsion for some lesser offense than rape? Can Yale administrators now act as impartial triers of fact to make that determination, or is their lack of impartiality already evident?

Sexual misconduct includes everything from hurt feelings to rape and arises from a complex of causalities ranging from improper socialization to severe mental illness. Due process is a delicate and sophisticated instrument. Title IX is the equivalent of using a sledge hammer to perform brain surgery.

Perhaps it would be best for Yale to first fix its Title IX system before blundering on into yet another catastrophe.

James Luce ’66