Do students get a fair hearing? An effort to change how colleges handle sexual assaults.
As heated debate continues over how to handle allegations of sexual assault on college campuses, another bill is about to be thrown into the mix – this one most notable for its efforts to ensure that students are able to get a fair hearing on campus, and give law enforcement a more prominent role in such cases.
It also could trigger concern from victims’ advocates who have long pushed to make it easier for students to report violence, and who point to evidence that students may be hesitant to ask for help if they feel a complaint would automatically trigger a criminal investigation or other harsh sanction.
The House bill, sponsored by Republican Reps. Matt Salmon of Arizona and Pete Sessions and Kay Granger of Texas, is expected to drop Wednesday morning.
That coincides with a Senate hearing Wednesday on a closely watched bill with bipartisan support that aims to bring more visibility and vigilance to efforts to prevent and adjudicate sexual assault on campus. That bill would require colleges to regularly survey students about sexual violence and publicly report the results, provide a confidential adviser to students who report an incident, and impose fines on schools that don’t comply with federal rules.
Rape and sexual assault on campus have gotten much attention recently, with many concerned that college officials have not shown they can effectively investigate allegations and provide a fair hearing to those who are accused — and some college officials worried that a maze of legislation is keeping them from best helping their own community.
Some key elements of the House bill:
• Students alleging sexual violence could decide whether to report the incident to law enforcement or not. If a serious crime were alleged and the student preferred not to involve police in an investigation, campus officials would not launch an internal investigation. But they could provide protections to the student, such as requiring the accused to avoid the accuser.
• All students involved, both those reporting an assault and those defending themselves against the charges, would have the right to hire lawyers at their own expense. Both sides could ask questions of witnesses.
• Those accused would have the right to know the charges they’re facing, and see the evidence against them.
• Colleges could choose what standard of evidence to use. For several years, a federal directive has held such campus proceedings to a “preponderance of evidence” standard, less stringent than would be required in a judicial proceeding and less than many colleges had previously used.
“Hopefully this is going to go a long way in changing the policy discussion, which for too long has been one-sided in Washington,” said Joe Cohn, the legislative and policy director for the Foundation for Individual Rights in Education. “The Safe Campus act is a welcome addition to the conversation about how to address campus sexual assault … until its introduction, there hasn’t been any tangible due-process right included in the language of any of the bills that Congress has been considering.”
He said provisions of this bill could work well with the best of the bill that the Senate will be hearing Wednesday.
The right to legal representation at campus hearings for both students involved is fundamentally important, Cohn said, a right they only have now in North Carolina and North Dakota.
“Most people don’t realize that statements students make in these campus proceedings are admissible in trial later on,” Cohn noted. “While it’s true the dean isn’t going to sentence a student to 20 years behind bars, a judge or jury in a hearing later might.”
There’s an awful lot at stake for an 18-year-old making an accusation or a defense, he said, and lawyers would be helpful for both.
A spokesman for the Rape, Abuse and Incest National Network was not immediately available Tuesday night to comment on the bill.
“Protecting our children is our chief concern, and we’re pleased that this legislation helps do that,” Salmon said in a statement. “Simply put, our bill would ensure swift and impartial justice to all students. It also protects the due process rights of campus student organizations and encourages institutions to offer access to sexual assault prevention programs, further benefiting at-risk student populations.”
Some people argue there’s already more than enough outside oversight, with federal regulations and laws, state laws and bills being debated. In the District, a bill that would give students found responsible for sexual assault a “scarlet letter” that would permanently mark their transcripts touched off an intense discussion about how best to keep students safe and ensure that those who are accused are treated fairly.
Yet others say the system clearly isn’t working now, with colleges unable to investigate allegations fairly and keep campuses safe, and that change is needed.
Sarah Merriman, a spokeswoman for SAFER Campus, a national advocacy group, wrote in response to the bill:
American college culture often paints rape on campus as a youthful indiscretion instead of the deliberate violent act that it is, and it is not the survivor’s job to “save” the assaulter from criminal prosecution. Though there are many college faculty and administrators that have the best interests of their students at heart, SAFER cannot agree that leaving judicial proceedings, and especially the standard of evidence, completely up to the school is best written into law.
Schools often want to preserve their perfect public image, and rape is not a part of that image; often, sexual assault prevention activists and survivors are treated as adversaries to a college’s public face.
We are not at a point to analyze “due process,” when many survivors are publicly shamed on their campuses, when charges against assaulters can be dismissed out of hand by administrators, when an assaulter is allowed to sit across from a survivor and shout down their story.
If we are to truly believe in due process for all, we must prioritize the needs of survivors first and foremost.
This bill, with its provisions to empower survivors to be avoided by their attacker on campus and to choose to report or not, is a start, but it trusts college administrations too much to act as an impartial governing body.
The heads of two prominent Greek student-life organizations wrote a joint letter in support of the bill. “We see too many alleged victims without justice,” wrote Pete Smithhisler, president and CEO of the North-American Interfraternity Conference, and Jean Mrasek, chairman of the National Panhellenic Conference.
“There are too many instances where alleged perpetrators of sexual violence are not being held accountable for their actions via the criminal justice system, compounding the harm to survivors,” and an ongoing need for education to prevent such incidents, the letter said. “We see too many students — accusers and accused — subjected to a campus disciplinary system that is unfair and opaque even as the stakes in these cases carry life-altering consequences for all parties.
“We want a system with stronger due process protections for all students to build confidence that the result reached in the campus disciplinary process is the correct one,” the letter said.