Senate to hold one-sided hearing on campus sexual assault
The Senate will hold a hearing Wednesday to discuss the alleged "epidemic" of campus sexual assault and how to combat the problem. To the dismay of due process advocates, the hearing panels are stacked against fair hearings for students.
The first panel features four senators — Kirsten Gillibrand, D-N.Y.; Claire McCaskill, D-Mo.; Dean Heller, R-Nev.; and Kelly Ayotte, R-N.H. All four were original sponsors of the Campus Accountability and Safety Act introduced in 2014, and all four are sponsors on the updated version introduced earlier this year.
CASA will surely be the focus of their panel, which is a shame because the bill is devoid of due process protections for accused students. When the bill was first introduced in 2014, I sent six questions to each of the original sponsors. Of the four sitting on the panel this Wednesday, only Ayotte's office responded — and the response ignored a question about due process. A series of follow-up questions were never answered.
Neither Heller nor McCaskill's office ever responded to the original questions. A staffer from Gillibrand's office called me back but was uninterested in answering questions; instead, the staffer merely gave me an overview of the bill.
The updated version of the bill introduced in March includes the words "due process" three times and refers to accusers as "victims" even before any evidence is collected or any verdict is rendered — a clear bias against accused students. And as for due process, the bill only gives students as much due process as "afforded to them under institutional policy," not the rights afforded to them by the Constitution of the United States. Those rights under institutional policy vary widely among colleges across the U.S., and no college gives students actual due process rights.
Some colleges allow students to consult with an outside attorney (at the student's expense, meaning poorer students may be out of luck). Some colleges allow that attorney to sit in during the hearing (but the attorney typically isn't allowed to speak on the student's behalf). Some colleges allow students to provide a list of questions to be asked of the accuser (they can't directly speak to the accuser so as not to "re-traumatize them, which is another layer of bias and eviscerates an accused's right to face his accuser).
Even if the student is allowed to present questions to the accused, the hearing panel decides which questions to ask — often times omitting relevant and important questions. And the hearing panel gives no opportunity for follow-up questions.
Wednesday's hearing is unlikely to address these concerns, as the four senators testifying on the first panel have shown little regard for such constitutional protections.
The second panel consists of academics and an activist. University of California President Janet Napolitano — the former secretary of homeland security — is one panelist. Last year she instituted new policies to combat sexual assault that were the result of a one-sided task force.
Let's not forget that the University of California-San Diego was recently excoriated by a judge for providing an "unfair" hearing process that denied the accused student meaningful due process.
Also on the second panel is Dana Bolger, co-founder of Know Your IX, an organization dedicated to using Title IX in order to claim sexual assault is gender-based discrimination. It is a victims' advocacy organization that published a "guide" for "journalists" reporting on sexual assault. The guide essentially advises journalists to write articles in a way that bestows victimhood on accusers and guilt on the accused without any evidence other than an accusation.
Dolores Stafford will also be on the second panel. She's the executive director of the National Association of Clery Compliance Officers. The Clery Act requires schools to collect and publish campus crime statistics. It is an un-detailed assessment of college crime, as it counts reported incidents and not actual incidents. From the victim's perspective, it is problematic because it doesn't include information about the outcomes of such reports.
Finally there's Mollie Benz Flounlacker, the associate vice president for federal relations at the Association of American Universities. Her organization signed on to a letter about problems with CASA, but the problems brought up do not address the lack of fairness and due process in campus hearings. In fact, due process is brought up in the letter — but framed as an obstacle to campus justice.
"While colleges and universities take their obligations to survivors of sexual assault very seriously, campus disciplinary processes are not proxies for the criminal justice system. The use of the term 'due process,' for example, in describing procedural protections for victims is likely to confuse," the letter says.
"The term has a specific legal meaning for public institutions and has limited application to private institutions. Current law requires institutional investigative and disciplinary processes to be 'prompt, fair and impartial.' We recommend that any language on this matter be flexible enough to cover all institutions and be consistent with existing law."
Essentially, even though campuses are now adjudicating felonies, they shouldn't have to actually act like a court of law.
Those are the eight people who will be addressing campus sexual assault on Wednesday. It is highly unlikely that even one of them will suggest that the draconian measures being thrust upon universities are fundamentally unfair and biased. Not one person is there to suggest that maybe colleges shouldn't be adjudicating felonies. Not one person is there to suggest that if colleges do continue to adjudicate felonies, then they need to provide students the same protections an actual court of law would provide.
Those working to combat campus sexual assault should not ignore the rights of the accused or the possibility of false accusations. Current campus policies guarantee an increase of false accusations that will lead to more innocent students having their lives ruined for the sake of a preferred narrative.