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Remembering The Rights Of The Accused

Harvey Silverglate: Massachusetts should pass the “right to counsel” bill to reflect the reality of shadow criminal justice systems on our campuses. In this Wednesday, Oct. 1, 2014 file photo, a student at Texas Tech helps drape a bed sheet with the message "No Means No" over the university's seal to protest what students say is a "rape culture" on campus. (Betsy Blaney/AP)
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Harvey Silverglate: Massachusetts should pass the “right to counsel” bill to reflect the reality of shadow criminal justice systems on our campuses. In this Wednesday, Oct. 1, 2014 file photo, a student at Texas Tech helps drape a bed sheet with the message "No Means No" over the university's seal to protest what students say is a "rape culture" on campus. (Betsy Blaney/AP)

Imagine you’ve been accused of a very serious crime and are set to stand trial. If convicted, this case will follow you for the rest of your life, so you prepare; you hire the best lawyer you can afford and together, you and she conceive of your best possible defense. Now imagine that on the first day of trial, you learn that your lawyer is not allowed to speak; she’s to be an “advisor,” not an advocate. How well do you think you’d present your own defense?

Students are tasked with presenting their own defenses to very serious crimes; this would be challenging for anyone, let alone a college freshman.

Young men around the country and here in Massachusetts are learning the answer to that very question. Because of recent interpretations of a federal law known as Title IX, colleges and universities must, in the name of providing equal opportunity to receive an education free from sexual harassment broadly interpreted, adjudicate accusations of sexual assault or else risk the loss of federal funding. National attention on the issue of campus sexual assault has revealed the resulting campus disciplinary proceedings as the farces they are — systems where accused students have few rights but face enormous consequences if found responsible.

In this charged climate of mattress protests and misleading documentaries, men (and sometimes women) accused of sexual assault need good legal counsel more than ever. But on many campuses across the country, students are allowed only an “advisor.” This advisor may (in some cases) be a lawyer, but advisors may not actively participate in the hearing. Students are tasked with presenting their own defenses to very serious crimes; this would be challenging for anyone, let alone a college freshman.

That is why some lawmakers are introducing “right to counsel” bills in their state legislatures to ensure that some due process exists in these quasi-judicial proceedings that the federal government insists schools conduct. These “right to counsel” laws, like the one that already exists in North Carolina, give students the right to an attorney who can actually represent them. A similar bill (S. 670) introduced by state Sen. Barbara L’Italien is currently pending in the Joint Committee on Higher Education of the Massachusetts Legislature. The committee held a hearing concerning this bill on June 3 in the State House and will hopefully approve it in the coming weeks.

Opponents of this bill, several of whom spoke at the hearing last week, argue that a participating lawyer would make the campus process too “adversarial.” This criticism is absurd on its face. The process in a campus rape case is inherently adversarial; the question is whether the rights of each party in the proceeding are adequately protected. Under the current system, the rights of the accused are clearly not.

the question is whether the rights of each party in the proceeding are adequately protected. Under the current system, the rights of the accused are clearly not.

Joe Cohn of the Foundation for Individual Rights in Education (FIRE), a nonprofit civil liberties organization dedicated to fair procedure and free speech on college campuses, testified that students are essentially receiving “ineffective assistance of counsel.” (In a real court, this would be grounds for appeal.)

Colleges are not courts of law and probably shouldn’t be acting like them. But like it or not, the federal government has determined that campus tribunals are here to stay. Massachusetts should pass the “right to counsel” bill to reflect the reality of shadow criminal justice systems on our campuses — it’s the least we can do to assure some semblance not only of justice, but also of accurate outcomes.


Samantha Miller contributed to this piece. In addition to being Harvey Silverglate's research assistant, Miller works as a program associate at FIRE. 

Related:

Harvey Silverglate Twitter Cognoscenti contributor
Harvey Silverglate is a criminal defense and civil liberties lawyer.

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