An overdue public debate has erupted about how to address the widespread problem of sexual misconduct on college campuses. It’s clear from the many complaints filed, the number of schools under federal investigations and the media coverage that universities have too often been slow or ineffective in responding to sexual assault and harassment.
As calls for reform grow louder and schools rethink their policies, lawyers close to the criminal justice system have raised questions about the fairness of university-based systems issuing judgments on allegations of misconduct. As a result, the press is now full of discussions about the fairness of colleges’ procedures and standards of proof.
We also need a robust debate on punishment. Given many schools’ continuing reluctance to investigate—let alone penalize—sexual misconduct, concern for proportionality in sanctions may seem premature. But retribution, deterrence and incapacitation need to be balanced—both on campus and off—by compassion and generative ways to repair lives.
That’s why drawing lessons from the criminal-justice system is useful. The criminal-justice system does more than decide guilt; it also imposes punishments. While universities don’t put people in jail, they can expel, suspend or fire them. To improve both systems, we need to know who is being punished, for what and how.
One of the reason we can learn so much from the criminal justice is because courts are required to operate in public. Public accountings have documented wrongful convictions, suicides in jails and the horrors of years spent warehoused in isolation. That information—along with keen awareness of the costs to both people and the government—has galvanized bipartisan reforms aiming to fix a system now widely regarded as broken.
Publicity, as Jeremy Bentham famously stated two centuries ago, is the “soul of justice.” In contrast, most universities have closed decision-making processes that cut off our capacity to understand and to evaluate the judgments made. We can’t create systemic change in campus cultures without a full account of the many problems. And we can’t decide on how to tailor remedies for those injured and what sanctions to impose for those found culpable without knowing more about the current responses. Just as we debate what behavior should be criminal, whether to put people in prison, and what factors are “mitigating” or “aggravating,” debate is needed about whether a six-month, a one-year or a total ban from a campus are appropriate for which kinds of sexualized misconduct.