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New Campus Rape Bill Offers a Better Way

As the start of the school year nears, the charged issue of sexual assault on campus is back on Capitol Hill. A recent U.S. Senate education committee hearing focused on the need for colleges to take stronger action against sexual violence and on a pending bipartisan bill, the Campus Accountability and Safety Act (CASA), which would penalize schools for failing to do so. But is there a better way? A new House bill, the Safe Campus Act introduced by Republicans Matt Salmon of Arizona and Pete Sessions and Kay Granger of Texas, stresses a greater law enforcement role and more safeguards for the accused. Similar concerns were raised by the several members of the Senate panel, including Sen. Lamar Alexander (R-TN) and Sen. Sheldon Whitehouse (D-RI). We may be finally seeing some momentum in Washington to reassess and revise the current government approach to campus rape—and it’s about time.

At last week’s Senate hearing, one of CASA’s sponsors, Sen. Kirsten Gillibrand (D-NY), lamented that colleges often fail to treat sexual assault “as the violent felony that it actually is.” Yet we currently have a federally mandated system of campus “justice” in which sexual assault is handled as a disciplinary infraction: complaints are investigated by school officials rather than sex crime detectives, and the punishment for offenders is not prison but, at worst, expulsion from school. CASA creates new incentives for this system to be tougher in pursuing complaints.

The hearing sidelined critics who believe this system is already rife with bias against accused students, and who were only allowed to submit written testimony for the Senate record. Yet these concerns are being voiced not only by expelled men and their families but by feminists like Harvard law professor Janet Halley.

In the past year, critics across the political spectrumhave pointed out that the college “justice” system is unfair to both sides. Students who say they were wrongly accused may face life-changing consequences—and acquire the moral and reputational equivalent of a felony conviction—with few of the legal protections accorded criminal defendants. Some may even find themselves in a situation where the testimony they have to give in these extralegal proceedings may be used against them in a criminal case.

On the other hand, suspension or expulsion from school seems a pitifully inadequate penalty for sexual assault; it also does nothing to stop the perpetrator from finding new victims. Virginian Jesse Matthew left two local colleges in 2002 and 2003 after being accused of sexual assault in disciplinary complaints that were never reported to the police. He is now facing charges in last year’s abduction of University of Virginia student Hannah Graham (whose remains were found in October) and in a violent sexual assault in 2005; he is also the lead suspect in the 2009 abduction and murder of a Virginia Tech student.

The Safe Campus Act seeks to overhaul this system. Under the proposed House bill, colleges and universities would have to report all sexual violence complaints to the police except when the complainant asks for confidentiality—but in that case, no disciplinary action could be taken against the alleged offender. (While the police investigation is pending, colleges would be able to take interim measures such as reassigning dorms or rearranging class schedules to avoid contact between accuser and accused, and briefly suspend the accused if there are safety-related reasons to do so.) While colleges would still hold their own hearings on sexual misconduct, both the accuser and the accused would have the right to legal representation and full access to all the evidence. Colleges would also have more latitude to decide what standard of proof to use in evaluating these cases, in contrast to current federal policy which directs them to use the most complainant-friendly “preponderance of the evidence” standard.

The bill is already being criticized by some victim advocates for failing to “prioritize the needs of survivors” and seeking to “limit college rape investigation.” In the past, campus anti-rape activists have opposed state-level measures that would require schools to turn over sexual assault reports to law enforcement, arguing that it will discourage many women from coming forward. Many activists see campus “justice” as a more compassionate, feminist and victim-friendly alternative—an environment in which “believing the survivor” is a strongly held principle, sexual assault is defined more broadly than under the law, and the burden of proof is increasingly shifted to the accused (especially with the rise of the “affirmative consent” standard).

It is true that if campus sexual assault cases are handled by real cops and real courts, many charges that currently result in “convictions” and penalties within the college disciplinary system will not get very far. Often, these are situations in which the accuser is intoxicated but is a conscious and active, if judgment-impaired, participant in the encounter. Male students have been punished and even expelled in such cases; yet similar criminal complaints—sometimes based on the same incident—have been dismissed with no charges being filed. It is equally unlikely that a complainant who passively yields to unwanted advances in the absence of any force or threat could successfully press charges in the criminal justice system. Yet colleges increasingly treat such incidents as nonconsensual sex, both in hypotheticalscenarios in policy statements and in real-life cases.

But this should be an argument for sticking with the law. Campus “justice” uses catchall terms like “sexual misconduct” or “nonconsensual sex” to cover everything from rape involving force or incapacitation to unwanted or ambivalent encounters that stem from miscommunication, impaired judgment, or emotional pressure. The result is to both criminalize bad sex and trivialize rape: two-thirds of undergraduates in one recent survey agreed that “rape and sexual assault can happen unintentionally, especially if alcohol is involved.” What’s more, such labeling creates the misleading impression that college rapists are being let off with a short-term suspension or a mere reprimand.

Of course, sexual encounters that don’t meet the legal definition of a crime may still leave young people distressed and traumatized—and one can argue that colleges should have a way to address such incidents without calling in the cops. But labeling such encounters as rape or sexual assault may be actively counterproductive. For instance, in cases that stem from misunderstanding or miscommunication, the best remedy may include be mutual counseling. Moreover, in preventing such situations, it is entirely appropriate to teach young people not only to be more attentive to their partner’s signals when initiating sex, but also to be more assertive in rebuffing unwanted overtures (a strategy that a recent study foundto be highly successful). If such cases are equated with rape, joint counseling becomes shockingly inappropriate and any talk of mutual responsibility becomes “victim-blaming.”

A law enforcement-centered approach to reported crimes, supplemented by a campus-based system of resolution for noncriminal personal conflicts involving sex, would be a better way of serving all students. The Safe Campus Act deserves support as a potential first step toward such reform.

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