Virginia lawmakers kill bills meant to protect rights of accused students
Legislators shot down a trio of bills this week meant to give students who are accused of sexual assault more rights during the internal campus inquiries that can lead to expulsion.
The bills were tabled at a small House subcommittee meeting, and as the Virginia General Assembly grapples with how to handle the suddenly high-profile issue of on-campus sexual assault.
Bills requiring administrators and faculty who learn of an assault to report it to law enforcement are moving forward in Richmond, despite concerns from advocates who say victims don't always want criminal investigations.
Legislation that would require campuses to put notations on transcripts when a student leaves during or because of a sexual assault inquiry is also advancing. Amid this, there is quiet concern that Virginia's response to the attention on college sexual assaults may trample on the rights of the accused.
"No one's paying attention to them," said Del. Dave Albo, who chairs the House Courts of Justice Committee.
Albo, R-Springfield, called for reforms in the wake of the now largely debunked Rolling Stone article about rape at the University of Virginia. But he pumped the breaks on that effort as his committee delved into a complex world of federal and state regulations, victim's rights and internal discipline procedures.
"It's a problem," Albo said. "There's a lot of very important open questions on these bills still."
Del. Rick Morris, R-Carrollton, has been trying to reform the internal discipline process for two years now. One of his bills, killed this week in a small and crowded subcommittee room, would have allowed students to be represented by an attorney at these proceedings.
Another made the same change for student organizations. The third would have allowed students to essentially appeal a student judiciary decision to the local circuit court.
What the accused says during those proceedings can be used against them in criminal court, and though students are typically allowed to have an attorney present, the attorney cannot speak for them. There are also often limits on how much evidence they can introduce, advocates said.
Morris would like to see that change. He points to the case of Ben Casper, a former College of William and Mary football player accused in 2012 of raping and choking a female student during a party. Casper's parents, who testified during the subcommittee hearing, said William and Mary forced him to leave school.
"He was basically railroaded out of college," Sylvie Casper said this week.
Then he was turned away from several other Virginia universities because of a transcript notation, they said. These notations would become mandatory under legislation moving in both chambers of the General Assembly and backed by Gov. Terry McAuliffe.
A James City County jury found Casper not guilty on all counts a little more than a year after he was accused. The Caspers said their son wasn't able to mount a true defense during the university's internal inquiry. An advocacy group called FIRE — the Foundation of Individual Rights in Education — took up his case and is fighting for changes.
"Because any statements he would make in those proceedings could be held against him in future criminal proceedings, Ben was forced to choose between defending himself in his campus hearing and defending himself in court," FIRE says on its website.
A William and Mary spokesman said the university wouldn't comment for this article, citing federal student privacy regulations.
Morris' bills were killed off, at least in part, because of their predicted fiscal impact. Legislative staff predicted that if the accused take advantage of new attorney rights, universities would feel compelled to beef up training and to provide attorneys for students and administrators sitting in judgment.
A series of fiscal impact statements put the cost at more than $1 million a year, though Morris and Joseph Cohn, FIRE's legislative and policy director, took issue with that. They said nothing in the bills would require the state to hire more attorneys. Cohn blasted subcommittee members, saying they mischaracterized several aspects of the bills.
The subcommittee debate turned into a back-and-forth over how far-reaching student conduct hearings actually are, and should be. Bill opponents said that allowing attorneys to make arguments would overcriminalize proceedings.
"We're not deciding the law in there," subcommittee Chairman Jimmie Massie said. "We're just deciding whether you broke the code of conduct."
"It's a student process that students agree to when they enroll," Laura Fornash, who handles government relations for the University of Virginia, said following the meeting.
Morris became agitated during the debate, raising his voice. After the meeting, Cohn said legislators were wildly off base.
"It's outrageous that this committee says it's only a student conduct hearing," Cohn said. "That's only true in the imaginary world of this subcommittee."