Division and debate regarding this legislation stems from the question, “Who is this meant to protect–the accuser or the accused?”
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In July 2015, Representatives Matt Salmon, Pete Sessions, and Kay Granger introduced legislation, known as H.R. 3403 (Safe Campus Act), to Congress. In that same week, a similar bill, known as H.R. 3408 (Fair Campus Act), was introduced to Congress by Representatives Pete Sessions and Susan Brooks. Since that time, organizations, individuals, and collegiate entities have been divided on the legislations’ intent and fairness.
To some, the Acts are believed to protect accusers and the accused by cleaning up sometimes messy campus judiciary processes in regards to sexual assault allegations by implementing investigatory and due process measures.
To others, the Acts are believed to pigeonhole victims of sexual assault crimes into involving law enforcement while also creating a more dangerous campus culture by restricting campus discipline of the accused during criminal investigation.
In order to create dialogue around this issue, which is my intent here, it is important to understand the key elements of the legislation. Since these are summarized below, I encourage you to read the full legislative language using the links above.
Element #1: Involvement of Law Enforcement
Under the Acts, if someone comes forward to a campus official with an accusation of sexual assault, they (to avoid the gender binary, they will be used in replacement of he/she) have an important decision to make.
What impact does the psychological pressure of mandated law enforcement involvement have on a victim of sexual assault?
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They can sign a statement indicating they allow the campus to report the incident to law enforcement to begin investigation. If that statement is provided, campuses are able to impose interim measures against the accused (i.e. suspensions, change of classes, etc.).
If the accuser chooses not to provide permission to report to law enforcement, confidentiality is respected, but campus officials are not permitted to initiate or carry out disciplinary measures or interim sanctions in response to the accusation.
Questions to Consider:
-What impact does the psychological pressure of mandated law enforcement involvement have on a victim of sexual assault?
-Is it safe for a someone accused of sexual assault to remain on campus if the accuser is unwilling to approve law enforcement involvement?
-Should the accused be exposed to campus disciplinary measures or interim sanctions for which there has been no criminal investigation?
Element #2: Due Process
Under the Safe Campus and Fair Campus legislation, campus investigative and disciplinary processes will become more formalized, as they currently vary from location to location.
In short, the legislation proposes that all parties involved in investigative or disciplinary campus action regarding sexual assault accusations must receive the following:
- Two weeks written notice of charges and explanation of process
- Opportunity for accused to admit to or contest the allegation
- Access to inculpatory (favorable to the prosecution) and exculpatory (favorable to the defendant) evidence no later than one week prior to the hearing
- Ability to hire outside counsel, at the individual’s expense
- Ability to safely confront witnesses, including accused and accuser
- Removal of conflict of interest (ex. campus investigator cannot be campus adjudicator)
Questions to Consider:
-How does the ability, or inability, to hire outside counsel affect the process and outcome of campus disciplinary procedures?
Element #3: Standard of Proof
Would campus freedom to choose the standard of proof protect the rights of the falsely accused?
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Currently, campuses are mandated to abide by the Department of Education’s Office of Civil Rights standard of proof, which is based on a “preponderance of evidence.” This is different and less rigorous a standard than what many are familiar with in criminal trials, which is “beyond a reasonable doubt.” Under the Safe and Fair Campus legislation, states, campus systems, or individual campuses could choose the standard of proof it deems appropriate to carry out disciplinary procedures.
Questions to Consider:
-Would campus freedom to choose the standard of proof ensure that more perpetrators of sexual assault are held accountable, or would it lessen the ability to hold perpetrators accountable?
-Would campus freedom to choose the standard of proof protect the rights of the falsely accused?
Element #4: Safe Harbor
Under the Safe and Fair Campus Acts, campuses would not be in violation of Title IX if they do not pursue disciplinary procedures against an individual accused of sexual assault, as long as the campus has written consent that the accuser chose not to involve law enforcement (see Element #1).
In addition, students who come forward with information regarding a sexual assault accusation and who were not involved with any violent offense at the time of the incident, are given safe harbor from investigation of other offenses. For example, if a student came forward with information about a sexual assault that occurred at a party where they were drinking and under 21, the student would not be investigated for underage drinking as long as the student was not involved in a violent act related to the accusation.
Questions to Consider:
-Would a campus potentially encourage accusers not to pursue law enforcement involvement so that reputation is not sullied by a criminal investigation while at the same time the campus remains in compliance with Title IX regulations?
Element #5: No Sweeping Organizational Suspensions or Bans
Greek organizations are especially under the microscope in regards to campus sexual assault issues. After the suspension of the entire Greek Life system at the University of Virginia in response to the now retracted Rolling Stone article, and after similar system wide suspensions on other campuses, the Safe and Fair Campus Acts include language that specifies organizations must be designated as a danger to campus health and safety in order for suspension to occur. Suspension of an entire organizational system, for punitive purposes, would no longer be permitted.
Questions to Consider:
-Does this allow organizations inside a larger system that have shared systemic issues to “circle the wagons” in a protective mode while one organization is made an example of?
-Does this create a level of responsibility and accountability for campus administrators to perform due diligence on individuals or individual organizations rather than making sweeping decisions that affect an entire system?
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Let’s continue the dialogue around this issue. While doing so, let’s also keep in mind that respect and understanding must be the common thread throughout our discussion.
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Image credit: t3rmin4t0r/flickr
Having a low standard of evidence where a kangaroo court can put a permanent scarlet letter on your file which affects your ability to go to other colleges (Unless I’ve heard wrong?) is bad, and not at all acceptable. How is it even remotely in the best interests of the student population that a he says she says act can get someone kicked out, when we’ve already had multiple cases where it wasn’t used in good faith but to harm an innocent man. Innocent until proven guilty is the basis of a humane, and decent society and most definitely should… Read more »
@ Archy ““colleges have a right to uphold the safety of their community by expelling someone who has violated their code of conduct for sexual misconduct. ” That is part of the dishonesty. It wasn’t colleges who elected to use the standard (ie right). It was government who mandated it. Oh, there may be some question as to whether they mandated it or not, but their dear colleague letter was a very thinly veiled threat to lose federal funding unless colleges convicted more of the accused. The government has decided that the only just outcome in any “rape” case is… Read more »
I’m often told that we need to look at things differently because of the affect it has on a person. It’s usually in cases like DV where people try to assert that a woman hitting a man isn’t the same as a man hitting a woman because he does more damage. OK, then if 1 in 5 women are getting raped in college, which is what many are asserting to reduce the protection for the accused, why are women graduating at rates higher than men.? Why are women becoming the majority of students in grad school? Whatever is or is… Read more »
Under due process, what about the right to subpoena? There was the case of a young man who was expelled from school. After a couple years passed, some friends of the accuser came forth with texts, which proved it wasn’t rape. The expulsion may have been prevented altogether if the accuser was compelled to turn over her phone and phone records.
Archy: “Innocent until proven guilty” is only true in criminal trials, so your reference of that in the context of colleges is not correct. “Innocent until proven guilty does not apply in administrative hearings (which is what college hearings are), or civil trials, just criminal courts. Colleges are not criminal courts. It’s not even a civil trial. This is an administrative hearing, enforcing the school’s code of conduct. Just like colleges have a right to uphold the integrity of their academic reputation by expelling a student who violates the school’s code of conduct by cheating on their final, colleges have… Read more »
Actually John it is fair to use the beyond a reasonable doubt standard because based on a person’s testimony one party potentially faces a loss of liberty. Accusers are not barred from filing a criminal complaint if their accusation is not upheld. Now you might say that’s true in civil trials as well. You’d be correct, however, an accuser found to have lied in a civil trial could be found in contempt something I don’t believe occurs during this administrative hearing. The second issue is that Title IX is supposed to ensure that EVERY student can get an education free… Read more »
I absolutely agree that Title IX applies to both accused and accuser. It should. Both need services, and there should be measures taken to protect both students, and allow them both to continue their educaction. That’s only fair, and what the law currently requires. CA’s school system is actually beginning a “respondent’s services” program on its campuses, which I think is a good thing. I absolutely disagree to your point that “beyond a reasonable doubt” standard is fair. There is no loss of liberty, in the legal sense of the word liberty. Any college that required a beyond a reasonable… Read more »
@ John
“has been deemed appropriate for college administrative hearings ”
200 years or so ago, slavery was deemed appropriate also, but should it have been? If the safe campus act passes, the law changes, right? I’ve tried to communicate with Alexandra Brodsky who is a big advocate for the accuser. She takes a similar position to you. Her reasoning is that it establishes a level playing field. I ask her how can the field be level when only 1 party faces potential criminal prosecution and let’s face it only 1 party faces administrative discipline?
I still don’t understand why universities are being expected to take the place of criminal courts in the first place.
Being kicked out of university with a permanent mark on your record where it can harm your chances of entering another university…based on a kangaroo court with no due process based on hearsay….should be illegal. The only way for disciplinary measures to happen is with the full protections of the law, it exists for a reason. Innocent until proven guilty, the alternative is not justice. Just because there are too many rapes on campus does not mean we should relax the standards and do real harm to people based on dodgy evidence with a lack of due process. Too many… Read more »
Element 0 Who is the victim? There is an assumption being made that the accuser can only be a victim and the accused can only be a victimizer. Element 1 Accusers are not precluded from filing police reports in the future. How does the potential threat of loss of liberty impact the accused defense when no such penalty impacts the accuser? Even in civil cases, people who bring malicious action could be sanctioned (intentional infliction of emotional distress). Element 2 If the institution is going to act as prosecutors, they should be required to pay for the accused defense. Element… Read more »