This year, 26 states and the District of Columbia either have passed laws or are considering laws addressing campus sexual assault.
Some of those states have included a “scarlet letter” provision to their law, which would require colleges to permanently mark the transcripts of any student convicted of sexual misconduct.
D.C. has a “scarlet letter” provision in its bill, and both Virginia and New York have passed laws that require colleges to note if a student was suspended or expelled after being found responsible for a sexual assault.
Defense attorneys Justin Dillon and Matt Kaiser, who have represented dozens of accused students in college sexual assault disputes, say that these laws, however well-intentioned, are unreasonably harsh to the accused students and prop up an unfair adjudication system.
“If the student is found responsible for sexual misconduct when he’s 19, then applies for a job that requires his transcript 30 years later when he’s married with two children, his transcript would still mark him as a rapist,” the two attorneys wrote in an op-ed for the Washington Post. “One would hope that an employer would care a lot less 30 years later, but that company will surely have a concern about its own liability for sexual harassment from that employee. This transcript note could effectively end a person’s career before it even starts.”
In cases Dillon and Kaiser have worked on, the accusations of assault are often ambiguous, involving a miscommunication rather than someone clearly stepping over the line.
“A biased investigator only has to find that it was more likely than not – just slightly better than a coin flip – that a sexual assault happened,” they wrote.
The two attorneys also noted that campus trials place the burden of proof heavily on the accused, with little regard for due process.
“You have the right to an attorney, but your attorney can’t talk during the hearing," Dillon and Kaiser point out. "You can’t cross-examine your accuser. You often can’t even submit questions for the ‘court’ to ask your accuser during the hearing — no matter what your accuser says.”
What's more, administrators and faculty involved in women's centers on campuses frequently play a role in the sexual assault trials, the lawyers said in an interview with Reason.com. Therefore, accused males often face judgement from university staff members who are motivated to take a strong stance on the issue, and are biased in favor of the woman.
All of these factors complicate accusations of campus sexual assault, and Dillon and Kaiser argue that "scarlet letter" penalties shouldn't be given out unless the trial process is full and fair.