United States: Seyfarth's Andrew S. Boutros Leads Release Of ABA Criminal Justice Section Task Force Recommendations On College Due Process Rights And Victim Protection

CHICAGO (June 26, 2017) - Led by Seyfarth Shaw LLP partner Andrew S. Boutros, the firm's National Co-Chair of the White Collar, Internal Investigations and False Claims Team, the American Bar Association (ABA) Criminal Justice Section Task Force on College Due Process Rights and Victim Protections has completed its mandate and released a unanimously-approved set of recommendations. The Task Force also included Seyfarth Shaw attorney Bridget Maricich.

Universally endorsed for publication by the ABA Criminal Justice Section Council, the Task Force recommendations urge the nation's nearly 5,000 private and public colleges and universities to adopt a fair and balanced disciplinary system in sexual misconduct cases that includes procedural and substantive due process protections for the accused while protecting the rights and interests of the victim.  You can read the recommendations and report here. Highlights include:

  • The Task Force recommends having an adjudicatory hearing in which at least three people other than the investigator decide whether a violation occurred. Schools should require a unanimous vote for a finding of responsibility.
  • The Task Force recommends that the complainant and respondent not be allowed to question one another or other witnesses directly, but should be given an ongoing opportunity during the proceeding to offer questions to be asked through the decision-maker(s), who will determine whether to ask them. The investigator should be available for questioning by the decision-maker(s) and the parties.
  • The Task Force spent considerable time discussing the standard of proof to be used by decision-maker(s) in determining whether a violation occurred. In light of concerns raised about both preponderance and clear and convincing evidence, the Task Force believes that it is best to avoid labels and instead articulate the appropriate basis for a finding of responsibility. In a model where there is only one decision-maker, the Task Force believes that there should be a higher standard of proof.

"The college and university community has been grappling for decades with how to fairly and effectively ensure fair process protections for both victims and the accused in sexual misconduct cases," said Task Force Chair Andrew S. Boutros.   

"On behalf of the entire Task Force and its members, we are all immensely proud to have played a part in helping the nation's thousands of higher education institutions and their approximately 21 million students in this important and complex area of law and policy," said Boutros.

The ABA Criminal Justice Section established the Task Force on College Due Process Rights and Victim Protections to develop guidelines and recommendations to ensure due process for both the victim and the accused in college campus sexual misconduct cases. You can read more about the Task Force here.

Seyfarth's White Collar, Internal Investigations, and False Claims Team represents colleges, universities, and other schools in matters involving allegations of Title IX violations, sexual assault on college campuses, and other allegations of student or school improprieties. In addition, the Team provides cutting-edge advice to clients (both companies and individuals) in all varieties of white collar matters, government enforcement defense, trials, internal investigations, and complex litigations, including matters involving fraud, embezzlement, the FCPA, insider trading, other securities violations, healthcare violations, customs fraud, trade secret theft, environmental crimes, and the False Claims Act, among others.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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