Kirsten Gillibrand claims her bill gives equal rights to accusers and accused, but it doesn't
Sen. Kirsten Gillibrand, D-N.Y., has been leading the charge against campus sexual assault, but her solutions would eviscerate due process rights and skew campus hearings in favor of accusers.
During a Washington Post symposium on campus sexual assault Wednesday (which included no speakers advocating for due process), Gillibrand was asked if the bill she has introduced — the Campus Accountability and Safety Act — takes into account the rights of accused students. Gillibrand responded with an emphatic "absolutely" before claiming that she and her Senate colleagues worked with accused students while crafting the bill.
"[We] made sure that they had the same rights of representation as someone who was alleging the crime," Gillibrand said. "And so, all notice requirements are for both, all representational requirements — that you can have someone by your side representing you — are for both."
This is not accurate. Gillibrand's bill does not specifically lay out what rights accusers (the bill calls them "victims" throughout, except for once, illustrating a clear bias) and the accused have. It states only that schools must provide each student with written notice of the process to provide them "with the opportunity to meaningfully exercise the due process rights afforded to them under institutional policy."
Due process rights are mentioned elsewhere in the bill as being provided by a certain section in the Higher Education Act of 1965. That section calls for a supposedly "fair and impartial investigation" conducted by minimally trained campus administrators (more on that later). It also calls for both students to be notified of the process and outcome of the investigation and allows them to have "others" present at the disciplinary hearing.
The idea that Gillibrand's bill advances the rights of accused students was challenged by Joe Cohn, the legislative and policy director for the Foundation for Individual Rights in Education, an organization that has been working hard to ensure that students are provided their due process rights.
"While CASA avoids some of the provisions most hostile to the rights of the accused found in other bills, it still provides resources to complainants in the form of confidential advisors that are not provided to the accused," Cohn wrote the Washington Examiner in an email. "Disappointingly, it does not require institutions to allow both the complainant and the accused to have lawyers actively participate in the campus proceedings. Preserving the status quo, where students must speak on their own behalf about accusations of felony misconduct, is deeply troubling, especially when one considers that statements made during these hearings will likely be admissible against them in subsequent criminal proceedings."
The deck is stacked against the accused student even before the hearing. Once a sexual assault accusation is made, the accuser has the entire Title IX office behind him or her. Gillibrand's bill requires training for each individual who implements the policies and those who are responsible "for resolving complaints." That training is to be "victim-centered," meaning whoever is conducting the investigation may be predisposed to assume the accused is guilty. The training includes how to question "persons subjected to sexual violence," "information on consent and the effect that drugs or alcohol may have on an individual's ability to consent" and "the effects of trauma, including neurobiology of trauma."
We know how the definition of "consent" has been narrowed and the definition of "sexual assault" has been expanded to include everything from a stolen kiss to rape. We know that in policies being pushed across the country, known as "yes means yes," the presence of alcohol, no matter how slight, can negate consent if an accuser so chooses. Meanwhile, being drunk is no excuse for an accused student, even if that means they also couldn't consent.
We also know what training in the "effects of trauma" will look like. Activists like to claim that a constantly changing story from an accuser is just evidence of trauma. When presented with evidence that the accuser did not believe the incident was sexual assault until months or years after it took place, the accuser is allowed to claim that she made such statements under duress.
In practice, Gillibrand's bill will continue the culture of "guilty until proven innocent" (and even then still guilty), but she doesn't seem concerned. She seemed to suggest that due process is an impediment to justice, and that to be thorough — as police investigators should — just takes too long.
"Well, the reality is that I would prefer many more cases to be going to the criminal justice system, but you need a way, as a campus administration, to get a serial rapist off your campus, and if you have to wait for a full trial and a full adjudication – that could be two years," Gillibrand said. "You have to have a tool where you can have a fair process, hear both sides and then make a decision."
Of course, she's not advocating for a fair process, as evidenced by her support of a woman whose story has been seriously called into question. Also, not every accused student has multiple accusations against them. Most are from a single accuser.
When she was being asked why evidentiary standards should be different for campus hearings than criminal proceedings, Gillibrand interrupted as if she were tired of being asked that question: "Because you're not throwing someone in jail." She received applause from the audience. She then bemoaned the protections afforded to accused persons in the criminal justice system.
"So, all of our criminal justice system — you're innocent until proven guilty, you are entitled to a defense — is entirely placed to protect defendants because the consequence is your liberty is taken from you," she said. "It is such a serious consequence that our whole criminal justice system is designed to protect the accused."
What Gillibrand ignores is that being expelled from campus and having your name splashed across local and national papers can have serious consequences for accused students — especially the innocent. An accused student might not be locked up in a cell, but the damage an accusation can potentially cause surely calls for due process to be taken seriously.
Being expelled from college could greatly reduce a student's lifetime potential earnings, as putting off a career for years while trying to finish school means lost years of salaries and promotions. We're seeing this with millennials who couldn't get hired after college during the Great Recession. Plus, an accused student's college transcript may reflect the fact that he was accused and expelled. The stigma will follow him throughout his attempts to finish his education. And any job that runs a background check will be able to discover that information.
The accused might not go to jail, but the consequences are effectively the same, and Gillibrand needs to recognize that. And by the way, the evidence from the hearing can be turned over to the police for a criminal investigation, meaning a skewed process could eventually result in jail time.
She added: "This is not a criminal proceeding. You are not going to jail. Schools need tools to either expel you or create accommodation for a survivor who has experienced trauma. They need those tools, and Title IX requires them to maintain safe campuses."
Get that? Someone is either found guilty or they get away with it, leaving behind a "survivor who has experienced trauma." Nowhere is there any mention that an accuser might not be a survivor.
One of the more baffling statements Gillibrand made was her supposedly hypothetical situation about a college professor dealing with a serial rapist.
"Just imagine you're a college president, and you have four accusations against one student by four other students, and you have no way to get him off campus until there's a conviction," Gillibrand said. "That would make your head explode."
Hmm, that sounds familiar — where do you think Gillibrand came up with the number four? That is not a random hypothetical. She was clearly alluding to her friend, Columbia University student Emma Sulkowicz, and her friends' accusations against fellow student Paul Nungesser.
Sulkowicz accused Nungesser of raping her (though Facebook messages call that assertion into question), and then three of her friends each accused Nungesser of various offenses — from a forced kiss to a bad relationship — in order to bolster her claim. Nungesser was found not responsible in each case except one, which he won on appeal. The fourth accuser's story waseven less plausible than Sulkowicz's.
Gilliband has called Nungesser a "rapist" in print, so it is no coincidence that she would come up with a hypothetical situation that perfectly mirrored her perception of the case.
Gillibrand concluded by making the case for mandatory expulsion for those found responsible for sexual assault — which will be nearly every accused student if her bill passes.
"We kick kids out all the time for cheating, we kick them out for not paying their tuition — we should be able to kick them out if they are found responsible for sexual assault," Gillibrand said.
If she weren't advocating for such a biased process, that would be an appropriate request. Students who have truly sexually assaulted another student should be kicked off campus — and into jail. Gillibrand's insistence that campuses adjudicate sexual assault and expel alleged offenders — expulsion which, she claims, isn't that bad — rather than put those who are guilty in jail shows an odd lack of concern for victims