Attorneys send letter to senators opposing campus sexual assault bill By Ashe Schow

October 4, 2014

A group of 20 attorneys from across the country with experience handling sexual assault cases sent a letter on Thursday to the co-sponsors of the Senate’s campus sexual assault bill.

The attorneys, who have all represented students accused of sexual assault who are now suing their universities for lack of due process, wrote that while sexual assault needs to be addressed, rights of the accused need to be preserved.


“We are concerned that the complexity of the problem and the momentum to find a solution to the manner in which colleges handle these matters will overwhelm any effort to ensure fair treatment to and protect the rights of the accused — particularly with respect to due process, impartiality and the collection of evidence,” the attorneys wrote.


They cited the Campus Accountability and Safety Act, noting the legislation uses the word “victim” or “victims” 34 times but “accused” only once.


“By presuming that all accusers are in fact ‘victims’ prior to any investigation or adjudication, the proposed legislation does a grave disservice to those accused of serious sexual offenses by ignoring a concept at the core of due process, innocent until proven guilty,” the attorneys wrote.


The attorneys remind the Senators that those accused of sexual assault “face potentially life-altering consequences from an adverse decision by their schools.” Therefore, colleges and universities have a duty to ensure that accusers and the accused are “treated fairly and equitably.”


The attorneys lay out their proposal for improving CASA, including referring alleged sexual assault cases to law enforcement, rather than simply establishing a relationship with law enforcement, as the current legislation does.


To keep colleges unbiased, the attorneys requested the senators scrap the plan to have one confidential adviser serve as the initial investigator and victim’s advocate, since that presents a conflict of interest. The attorneys also suggested having an advocate for the accused, both of which would be independent from the investigation.


Also requested was for investigators to be either professional investigators or to have law enforcement experience. These investigators would conduct an impartial inquiry “to determine whether a criminal referral is warranted” or whether the investigation should be handled by the university.


As for adjudication, the attorneys again emphasized the importance of due process rights for the accused, including the right to counsel and to cross-examine accusers. The attorneys also requested eliminating “blatantly unreliable hearsay evidence” and the ability for accusers to appeal “not guilty” decisions, as that amounts double jeopardy.


If colleges do continue to adjudicate sexual assault cases, the attorneys wrote, the panel of “judges” should be impartial and their training should be transparent — as in, what materials and instructions they’re given and what standards they must use.


Finally, the attorneys request college sexual assault cases “apply a clear and convincing standard to the evidence” instead of the “preponderance of evidence” threshold imposed by the Obama administration. The lower standard preferred by the administration allows college advisers to find someone guilty if they are just 50.01 percent certain the accuser is telling the truth.


The attorneys, which included five women and 15 men, sent the letter to 15 Senators — including seven Republicans — as well as the Department of Education and the White House.


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