Plucked this from another thread...you should probably read this and put yourself in the position being of the accused during this process.
http://www.rollbamaroll.com/2016/12/19/14013744/longform-inside-the-star-chamber
That article lays out the legal ground very well. It is interesting to contrast the Alabama SB nation article and the intelligent comments section to the Daily Gopher site, which seems to be comprised of students and recent grads where most are primarily horrified at the gang bang behavior and less so about the obliteration of civil rights. What kind of education is the U giving these days?
From the article:
Civil standards applied to serious criminal matters
What does the change of this evidentiary threshold mean? "Preponderance of the evidence", the standard applied to civil matters is a much lower hurdle to clear, as you would expect. Essentially, one looks at the evidence, and if there's 50.1% in favor of a finding against the accused, then there is a finding against the accused. "Clear and convincing" means that the evidence has to be much more heavily weighted in favor of a finding against the accused. It is not all the way to "beyond a reasonable doubt," but the two are close neighbors.
Other changes set forth by the OCR are a restriction of the role of counsel for the respondent -- a lawyer can be present but may not represent the accused; the requirement that the complainant be permitted to appeal the decision of the college -- not just the accused; and, that the definition of sexual harassment has been broadened dramatically. That definition has taken on a life of its own that is so broad as to lack any meaning, "any unwelcome conduct of a sexual nature… including verbal conduct."
The problem with the preponderance standard in this specific setting is that there’s no right of cross-examination, no right to perform an investigation on one’s behalf if accused. Let's compare this with civil trials. Those also have a "preponderance" standard, but when I'm doing a civil trial, I have the right to cross-examine witnesses, to issue my own subpoenas and compel a witness to attend in person, the right to pre-trial hearings on whether or not certain evidence is to be admitted.
In OCR cases, there's not only no constitutional protections for the accused, there are not even evidentiary protections in place: The accused can not call witnesses. The accused cannot question or enter into the record evidence of a complainant's mental state. The accused cannot enter into evidence previous statements of the complainant or previous specific actions which may indicate consent. As a practical matter of fact, there is a bias in the campus process against the accused.
Why is that so bad? If the bar to clear for a finding against the accused is only 50.1%, and there is an inherent bias against the accused from the start, how likely do you think that it is that the accused will get a fair, unbiased hearing?
In many instances, the colleges don't tell you with any specificity what you've been accused of doing. In one case I handled, the accused was charged with "possible sexual misconduct on [X date]." That was the sum total of the charges against him. What the heck does that even mean? If you don't know what you're being charged with, then how can you possibly mount a defense? This is particularly relevant in a charge where, by all accounts, there was sexual conduct- he says it was consensual, she says it wasn't...sorta. Some of it was. Some of it wasn’t, she said. What specific acts were not consented to? Who knows, and the schools may insist on interviewing the accused before any specific details become known.
By attending a University that receives federal funding, students have unknowingly signed away their Constitutional protections.
