The Shadow Government of W&L
Hayden Daniel (’19)-
Washington and Lee prides itself on student self-governance. This fact is often one of the primary selling points to prospective students. Lying, cheating, and breaches of the community’s trust are handled by the Executive Committee, while drug, alcohol, and vandalism charges are adjudicated by the Student Judicial Council, both of which are made up of students elected by their peers. To a prospective student, it would seem that discipline at W&L is an entirely student-controlled affair, fostering the sense of community and trust that accompanies the Honor System. However, despite assurances that student self-governance is a top priority at W&L and that the Honor System is entirely student-upheld, the power traditionally relegated to both law enforcement and W&L’s student government to discipline W&L students has been usurped by the Harassment and Sexual Misconduct Board.
The Harassment and Sexual Misconduct Board (HSMB) began its life as the Student Faculty Hearing Board, a body created at the request of the EC in 1992 in order to specifically preside over cases of sexual misconduct and harassment. In 2016, the Student Faculty Hearing Board evolved into its current form, the HSMB. As it stands, the HSMB retains the same power over sexual misconduct cases at W&L that the EC wields over cheating and the SJC wields over alcohol-related infractions. Additionally, the HSMB holds the power to attach the charge of “Conduct Unbecoming of a Washington and Lee Student,” essentially an Honor Violation, to any case it hears. According to the EC, the Board is comprised of ten individuals, each of whom is “appointed by the President and is specially trained to adjudicate cases of sexual misconduct.” There is no list or record of the Board’s members, most likely to protect the identity of the members and prevent any potential retaliation. In short, the Executive Committee willingly relinquished its power to govern student sexual misconduct cases to a Board comprised entirely of faculty and administrators.
Though the composition of the Board should be disturbing enough at an institution that advertises itself as a bastion of student self-governance, the policies and procedures of the Board are cause for even greater concern. First of all, neither the plaintiff nor the defendant can ask questions to each other or to witnesses called to the hearing. Instead, the plaintiff and the defendant must submit written question to the HSMB Chair, who then reads the written questions to the respective party or to the witness. This procedure is unfair to both the plaintiff and the defendant, since it eliminates the possibility of follow-up questions, which could be vital to the case. The Chair also reserves the right to throw out questions that violate prior evidentiary restriction set by the Chair during the Pre-Hearing Conference as well as the right to change the wording of the question, “provided that the substance of the question remains the same.” This cedes a huge amount of power to the Chair since he can outright reject questions or change the questions as long as he or she does not think that the alteration changes their meaning. The fact that the Chair reads the questions and has the power to screen questions provides the Chair with extraordinary power over the proceedings of the case and affords the Chair the ability to greatly influence the outcome to his or her preferred ends.
According to the Sexual Discrimination and Misconduct Policy, the University will not “release any individual’s medical or counseling records for purposes of the investigation, adjudication, or resolution of any allegation or complaint made under this policy absent such individual's written consent.” In other words, the defendant, whose future at W&L most likely hangs in the balance in one of these hearings, cannot demand medical evidence that the accused sexual misconduct took place without the plaintiff’s consent.
By this point, you may be wondering “Can you have a lawyer at this hearing?” or “Does it really matter if you have a lawyer at this hearing?” The answers are yes and no, respectively. If a student finds himself or herself summoned to a HSMB hearing, he or she is appointed two Hearing Advisors or one Staff Advisor. These advisors are made up of undergraduate or law students in the case of Hearing Advisors, and faculty in the case of Staff Advisors, who have been trained to represent students in hearings. In essence, they act as public defenders who are appointed if you are unable to afford an attorney. Their only function is to advise students on procedures. If one is so inclined, either the plaintiff or the defendant may procure an Advisor of Choice (i.e. a real attorney) to represent them in the hearing. Though a student may hire a real lawyer to represent him or her in the hearing with the hope of receiving a fair trial, that student would be sorely mistaken. Though Advisors may accompany their “client” to the hearing, they may not present evidence, ask questions, or participate in any way whatsoever. In practice, a student’s advisor only attends the hearing to provide moral support and advise the student to plead guilty or not guilty.
The entire affair, investigation, Pre-Hearing Conference, the Hearing itself, notification of outcome, window for appeal, and sentencing, is contained within a sixty-day period. The entire process for investigating and adjudicating a felony, rape, is completed within sixty days. This includes the appeals window, which is only 72 hours, so if new evidence is brought to light a few months later, the sanction determined by the HSMB will stay in place. This extremely small window to complete the entire judicial process, especially for a felony, creates far too great a risk for the miscarriage of justice to be justified.
If a student is found guilty of sexual misconduct by the HSMB or withdraws while under investigation by the Board, “the University will make or cause to be made a prominent notation on the academic transcript of each student.” Like Hester Prynne in Nathaniel Hawthorne’s classic novel, a scarlet letter will follow any convicted student to his or her future institution or employment.
Most egregiously, a student can be convicted of sexual misconduct, including rape, and dismissed form Washington and Lee University based on a preponderance of the evidence. Preponderance of evidence is the burden of proof used in most civil court cases in which the standard is met if the proposition, that the defendant is guilty of sexual misconduct, is more likely to be true than not true. This is opposed to the burden of beyond a reasonable doubt, the burden of proof used in criminal cases including rape. It is flatly outrageous that a W&L student can be convicted and punished for a felony based on the burden of proof utilized in civil cases. A student may be convicted of a felony, such as rape, without the benefit of their constitutional rights and based on a preponderance of the evidence, not beyond a reasonable doubt.
To be clear, Washington and Lee University does not have to abide by federal law or the Constitution in these hearings since W&L is a private institution and these hearings constitute internal disciplinary actions. However, it makes sense that an institution based upon honor and communal trust would try to style its internal judicial system to match that of the nation at large as much as possible. The amending of the constitutional rights of defendants in these cases is outrageous and is unbecoming of an institution such as W&L. Note, I say that the University has amended the defendants’ constitutional rights since it has restricted but not fully eradicated them. For example, the Confrontation Clause in the Sixth Amendment to the Constitution states that the defendant shall have the right to confront witnesses, which is most often embodied by cross-examination. In an HSMB hearing, the defendant may technically cross-examine witnesses, but in reality, he or she may not since the cross-examination questions are read by the Chair of the hearing and may be altered or thrown them out entirely, and there is no opportunity for follow-up questions or spontaneous questions.
Flatly, the HSMB must be abolished. Its amendment of basic constitutional rights coupled with the serious flaws and inherent unfairness in its procedure make it an unwieldy and indeed a dangerous tool in the pursuit of justice for victims of sexual misconduct. Its unfair and even corrupt policies make it ripe for abuse by administrators with a political agenda or ripe for a miscarriage of justice because of the restrictive nature of its policies. Instead, the crime of sexual misconduct on campus should be dealt with in a twofold manner.
First and foremost, any allegation of rape or other serious sexual misconduct should be reported to the police. Law enforcement should handle cases of sexual misconduct and the appropriate legal channels should be used for the resolution of these cases. If someone has committed a felony on this campus, then let them be tried in court where the burden of proof is beyond a reasonable doubt and they are afforded their full rights as United States citizens, not in some back-room hearing where their rights are mitigated for the sake of expediency or results. If they are truly guilty, then they will be found guilty in a court of law.
While any serious allegation of sexual misconduct should be reported to the police, we should deal with those accused of misconduct internally as well. Perpetrators of sexual misconduct have no honor. Therefore, let us hold them to account by holding an Honor Trial conducted by the Executive Committee. Let us not give away our ability to govern ourselves with the Honor System merely because the issue of sexual misconduct is sensitive or because it is easy to relegate such issues to a body governed by the Administration. We must hold each other accountable if we are to maintain the Honor Pledge that each of us signed, so let us hold these students accountable in a trial by their peers who signed the same Pledge they did. When we give away our power to govern ourselves to an appointed, unaccountable body like the HSMB, we lessen the impact that the Honor System has on our lives and our interactions with one another, and we give up on the idea of student self-government.