As you decide how to vote on the single sanction, we hope you will consider the following. We believe the single-sanction system fails to protect and promote honor at the University. More than that, we believe it violates basic due process of law. Here’s how:
1. The single sanction makes the definition of an honor offense unclear.
Currently, an honor offense is defined by the fulfillment of three criteria: act, knowledge and significance. The act criterion is simple. It asks whether something fits the Honor Committee’s definition of lying, cheating or stealing.
Knowledge is not so clear. It asks whether “the actor knew, or a reasonable University of Virginia student should have known, that the act in question might be considered an Honor Offense.” But in many cases, what “a reasonable University of Virginia student should have known” is really difficult — maybe even impossible — to determine with any real certainty. As the Honor Committee puts it, “there is no way to definitively say whether something will be considered an Honor Offense by the jury.”
Significance is even blurrier. It asks whether “open toleration of such act would be inconsistent with the Community of Trust.” What exactly does this mean? The current training manual for Honor support officers, who represent accused students, describes “significance” as “a somewhat subjective element that is decided by a student panel on a case-by-case basis.” One might think a “significant” act means one that is serious enough to merit expulsion. But the Honor Committee asks the jury not to consider the single sanction when determining the three criteria for guilt. So we are still left wondering: what does “inconsistent with the Community of Trust” actually mean? We’re not sure.
The single sanction is the reason our honor system requires the unclear “knowledge” and “significance” criteria. Consider what a single sanction honor system would look like without them. In that hypothetical system — let’s call it the “Strict Expulsion System” — anyone who committed an act fitting the Honor Committee’s definition of lying, cheating or stealing would be permanently expelled. That would include, say, every person at the University who has used a fake ID.
You might ask: couldn’t these two criteria simply be made more precise while preserving the single sanction? Well, the honor system has tried that, time and again. “Significance,” for example, is the result of decades of revision: it used to be called “reprehensibility,” then “seriousness,” then “non-triviality” before arriving at its current form. Why, then, is the definition still so vague? It’s because introducing leniency into the definition of an honor offense is exactly what the knowledge and significance criteria are intended to do. They allow the jury to take prima facie dishonorable acts and consider external, contextual factors. (This prevents the honor system from becoming the “Strict Expulsion System” we sketched.) The reader might wonder: exactly how much leniency do the two criteria introduce? As we show below, it’s basically impossible to tell.
2. The unclear definition of an honor offense makes the honor system ineffective.
The honor system is intended to make our community more honorable in two main ways: prevention and adjudication of potential offenses. Let’s consider prevention first. One of the main responsibilities of the honor system is to “publicize what constitutes, in the view of the current student generation of the University, an honor violation.” But, as we’ve suggested, what constitutes an honor offense is by no means clear. In fact, the phrase we quoted above — that “there is no way to definitively say whether something will be considered an Honor Offense by the jury” — is the official answer to the question “Is ___ an Honor Offense?” Instead of providing specific guidance, the training manual for support officers encourages them to “tell the audience to concentrate on living honorably in general, regardless of whether or not an act meets the full criteria of an honor offense.” What does that mean?
Concerning adjudication, the vague criteria are even more debilitating. It’s the policy of the honor system that jurors are not to make their decisions on the basis of past outcomes. But if neither precedent nor precise criteria provide reliable guidelines for determining particular cases, then how can jurors be expected to render consistent verdicts across trials? They probably can’t. Consider the words of a former Honor chair: “it offends fundamental notions of fairness that two students accused of similar, or even identical acts, could receive two different verdicts in two separate trials.”
3. The honor system is ineffective in a way that violates due process.
In a 2012 report, the Policies and Procedures Subcommittee of the honor system wrote that “the functionality of the Honor System is broken and demands reform before it undermines its core values.” It’s our view that the focus of such reform needs to be the sanctioning policy of the honor system. To be sure, even supporters of the single sanction acknowledge it exacerbates certain problems, such as low reporting rates and inconsistent verdicts. Still, they defend the single sanction by saying something like: ‘The absolute ideal expressed by the single sanction outweighs its practical drawbacks.’ We think the vagueness of a single sanction system fails to provide our community with a fundamental guarantee: due process of law. This, we contend, is a drawback no ideal can outweigh.
The U.S. Supreme Court has consistently struck down as unconstitutional laws that do not meet certain standards of “definiteness” or “clarity.” These decisions — see, for example, Chicago v. Morales (1999) — declare the laws in question “void for vagueness.” The Court explains that no law can be “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.”
Why does this matter? First, consider the effects on prevention. Vague laws fail to let people know what is illegal. According to the Supreme Court, the Constitution requires that laws inform people of “what the State commands or forbids” and that laws “give fair notice of the offending conduct.” This is, the Court has said, a “first essential of due process of law.”
Now consider the effects on adjudication. The Court has further claimed vague laws produce "arbitrary and discriminatory enforcement.” If judges and jurors lack clear standards for determining guilt, then it is impossible for them to render fair and consistent verdicts. For this reason, the Court has always held that laws cannot simply “leave it to the courts to... say who could be rightfully detained, and who should be set at large.” In other words, due process cannot be guaranteed by the whims of jurors alone.
It’s long been a tradition of our honor system that it remains distinct from the American legal system. This has many salutary effects. Certainly, for example, it would be horrible to see “Law & Order”-style hectoring and “lawyering” during an honor trial. But any system that has the possibility of enforcing a sanction like expulsion has a basic duty to ensure due process. As the University Board of Visitors writes, the honor system must provide “notice and opportunity to accused students to be heard in accordance with due process of law.” The federal courts have agreed: see the opinion of the U.S. District Court in Cobb v. Rector, Visitors, University of Virginia (1999).
The Honor Committee has been sued in the past for allegedly failing to provide due process. In each of these past cases, the Committee has been successfully defended. But, so far as we know, those cases weren’t based on the argument we’re making: that the honor system fails to ensure due process because it is, by design, unconstitutionally vague. The honor system fails to provide students with fair notice of what constitutes an honor offense, and it produces unpredictable and inconsistent verdicts.
Up to now, we haven’t even mentioned one of the major grievances that students have with our honor system: that its effects are discriminatory. In 2014, The Cavalier Daily reported that 62.5 percent of honor reports were filed against minority students, a time when only 28.3 percent of the undergraduate population identified as a minority. On any possible interpretation, this is deeply concerning. Viewing the honor system in light of the “void for vagueness” considerations may suggest that it’s no coincidence.
4. A multiple-sanction system is the only way to resolve these problems.
How would a multiple-sanction system better guarantee due process? Let’s return to the distinction we’ve been making all along.
This time, consider first the issue of adjudication. A multiple-sanction system would eliminate the need to introduce leniency into the system by means of a criterion like “significance.” Acts of lying, cheating and stealing could be directly determined on the basis of the strict definitions that currently exist. A multiple-sanction system would allow for a meaningful separation between the issue of guilt and the issue of penalty. As it stands, no act of lying, cheating or stealing can be called an honor offense unless it demands the expulsion of a student. Only two students were found guilty of honor offenses in 2015. Does anyone really think our single sanction system is keeping our community wholly free of dishonorable actions?
Finally, a better-functioning system of adjudication naturally enlivens its preventative role in the community. A record of fairly and consistently rendered verdicts would enrich each student’s knowledge of what it means to live honorably at the University. Because, as many have said, our honor system is about something more than punishing liars, cheaters and thieves. We couldn’t say it better: “Honor is about goodness. Honor is about decency.” Those are — will always be — the ideals worth fighting for.
Jaeyoon Park and Ian Robertson are fourth-years in the College.
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