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Students at UNC schools accused of sexual assault would get protection under new law

A bill introduced by a North Carolina lawmaker on Thursday would add legal protections for UNC system students who are accused of sexual misconduct. It also would standardize disciplinary proceedings for students at all 16 university campuses.

House Bill 305, introduced by Rep. Mitchell Setzer, a Catawba County Republican, would provide due process guarantees that don’t exist now for students accused of sexual misconduct.

Setzer did not immediately respond to requests to discuss the bill or what prompted him to introduce it. Co-sponsors Jason Saine, R-Lincoln, and Pat McElraft, R-Carteret, also could not not immediately be reached.

The UNC Board of Governors, which would have to adopt new rules under the law, did not wish to comment on it.

The law would require the Board of Governors to adopt mandatory, systemwide policies to ensure:

▪ Students are promptly notified when accused of sexual misconduct, including details of allegations, alleged violations of the Student Code of Conduct and copies of evidence against them. Students must be told of their right to consult an attorney and to have one accompany them through the process, and of their right to appeal findings of misconduct.

▪ Parties to an investigation are allowed to question and cross-examine witnesses.

▪ The investigation and any hearing must be impartial, and the person who investigates the allegations cannot also be the finder of fact at the subsequent hearing.

▪ Findings from the investigation and hearing must be written and provided to both the complainant and the accused to allow for review on appeal.

▪ The standard of proof will be “clear and convincing evidence,” a higher standard than is now applied.

The bill also would require all UNC schools to set policies governing student conduct and due process proceedings against students accused of violating the policies. Each school would have a code of conduct so that students would know what is expected of them and what conduct would be subject to discipline, as well as the range of disciplinary measures that might be used in case of violations.

It would limit the use of mandatory suspension or expulsion for violations unless otherwise allowed by state or federal law, and it would limit the use of long-term suspension or expulsion to “serious violations” of the code of conduct. A serious violation would be one that threatens the future safety of students, staff or school visitors, or threatens to disrupt the educational environment.

In addition, it would allow students accused of violations to have an attorney or advocate present through any hearing or other procedure, except in the case of a student accused of academic dishonesty.

Under the proposed law, student organizations charged with violations of the conduct rules also would be allowed to have an attorney or advocate present through any proceedings.

E. Lee Turner, a Raleigh lawyer who said he has represented N.C. State University Students accused of misconduct for 20 years, was not involved in the drafting of the legislation and said that most of what it spells out already is in place at NCSU. He said he was not aware of how other UNC schools operate, but thought it would be a good idea to bring uniformity to the system.

Turner said two provisions of the proposed law are especially good ideas: allowing the direct questioning of an accuser when sexual misconduct is alleged, and raising the standard of proof from “a preponderance of the evidence” to “not less than clear and convincing evidence.”

In the past, Turner said, any questions to be asked of an accuser had to be screened by the person conducting the hearing, and that person could disallow any question they deemed inappropriate.

Turner said he has been involved in cases where the accuser was not even present for the proceedings.

“So they don’t get to directly confront their accuser for something as serious as an alleged sexual assault,” Turner said. “And there are ripple effects. The student can be expelled. This can show up on their transcript. There may never be any criminal charge taken out, but the school can proceed on their own and it can be catastrophic at times. So I would be glad to see that a student would be able to question accusers and witnesses.”

Gene Riddle, whose Raleigh law firm represents victims of sexual assault, said he also was unaware of the history of the bill but after reading it, said the due process guarantees would be a good addition.

“Any time you give an attorney the right to question witnesses who have accused another party, I think that’s a good process,” Riddle said. “That’s part of due process. Our country is founded on due process.”

Riddle said the test of any law is how it’s interpreted and applied once it’s approved.

Writers of the bill want it to take effect Oct. 1.

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