NC bill aims to protect college students accused of sexual assault. Critics are wary.
Some North Carolina state senators have introduced a bill that would expand the rights of college students accused of sexual misconduct in all 16 UNC System universities.
The new bill would set a higher burden of proof for universities to find students responsible for sexual assault. It would ensure that all students have the right to legal counsel throughout an investigation and disciplinary process, and it would allow the cross-examination of witnesses.
But critics say the proposed changes would be unfair to those who have been assaulted.
“The cards are always stacked against the victim,” said Catherine Johnson, director of the Guilford County Family Justice Center. Johnson works with campus Title IX coordinators and faculty who sit on student conduct boards.
When a student reports an assault on campus or through the criminal justice system, the process could take months or years, Johnson said. She added that creating ways to support those who report assault is critical, particularly on college campuses where women are at a high risk of sexual assault.
“Anytime we try to dilute that process, that creates more systemic barriers that survivors have to navigate,” Johnson said. “Certainly we want a fair and just process, but oftentimes survivors are carrying the heaviest burden.”
And she said there’s no other crime where the emphasis is on victims to prove it, like there is with sexual and domestic violence.
The proposed changes align with Trump administration rules that strengthened the rights of accused students in campus sexual assault cases. But President Joe Biden recently signed an executive order asking the U.S. Education Department to review those Title IX policies and potentially change how schools handle sexual misconduct.
IMPACT ON THOSE WHO REPORT ASSAULT AND THOSE ACCUSED
North Carolina’s Senate Bill 117 is sponsored by Republican lawmakers Rep. Joyce Krawiec, Rep. Deanna Ballard and Rep. Vickie Sawyer. If passed, the new policy would go into effect next fall.
In 2019, Rep. Mitchell Setzer, a Catawba County Republican, introduced a nearly identical bill that passed in the House, but never made it out of the Senate.
Krawiec said sexual assault and sexual harassment are serious issues, and this bill will give accused students the due process rights they are entitled to, just as if they were accused of a crime in the community.
“In this country, you’re innocent until proven guilty, but on our college campuses that’s not necessarily the case,” she said.
Krawiec said she and her colleagues have met with lawyers and parents of college students who say they’ve been falsely accused of sexual assault, suspended from a sports team, expelled and “virtually their lives were ruined.”
The prevalence of false allegations is between 2% and 10%, studies show.
“It just needs to be fair,” Krawiec said. “There needs to be an investigation, and we need to make certain that everybody is treated fairly and that everybody is heard.”
Laci Hill, a senior at UNC-Chapel Hill, is a senior adviser in student government working on policies related to campus sexual assault and accessibility issues.
She said some of those assaulted might not have physical evidence and don’t feel comfortable going to a hospital and getting a rape kit done the day they were assaulted. Schools requiring more proof or evidence could further deter students from reporting incidents of gender-based violence, she said.
“A lot of people don’t want to come forward because they are afraid of being blamed for what happened to them, people won’t believe them and it can be traumatic,” Hill said.
HOW WOULD TITLE IX POLICIES CHANGE?
One of the biggest changes this bill would make at UNC System campuses is increasing the level of evidence permitted — and highly contested — under the federal Title IX guidelines set by former Education Secretary Betsy DeVos. Those guidelines went into effect in fall 2020.
UNC System schools currently use a “preponderance of evidence” standard in student disciplinary proceedings. That means that it is “more likely than not” that an accused student violated student conduct rules. This proposed law would increase that standard to “clear and convincing” evidence.
The UNC System now sets guidelines and a minimum standard for due process that schools must follow, but each individual university can set its own procedures. But if this bill passes, universities would be required to adopt these procedures, creating more uniformity across the system.
The new policy would include the following rules:
Accused students are promptly notified of the details of the allegations and evidence.
Accused students are advised of their the right to consult legal counsel throughout the investigation and hearings and their right to appeal the decision.
Both sides can conduct questioning and cross-examination of witnesses, including accused students and complainants.
Universities ensure the disciplinary hearings are impartial — the individual conducting the investigation can’t also serve as a “finder of fact” in a subsequent hearing.
Provide complainant and accused students written copies of facts and conclusions of investigation and hearing
Raise the standard of proof of responsibility for proving sexual misconduct to clear and convincing evidence.
At disciplinary hearings, a complainant never has to come face-to-face with the accused individual and an accused individual is never allowed to personally ask questions of a complainant, according to federal Title IX guidelines.
HOW PREVALENT IS CAMPUS SEXUAL ASSAULT?
About one-third of female UNC-CH undergraduate students say they’ve been sexually assaulted during college, according to a 2019 campus climate survey. By their senior year, nearly half of the young women reported being assaulted.
Between 2007 and 2019, the university reported more than 300 incidents of sexual misconduct under the Clery Act, a federal law aimed at keeping campus crime statistics and policy transparent. More than half of those incidents were rape.
At UNC, 15 students have been found responsible and disciplined for sexual assault since 2007, according to university documents obtained through a lawsuit.
Between 2007 and May 2020, 25 N.C. State students were found responsible for sexual misconduct, university documents show. N.C. State reported 40 incidents of sexual misconduct in 2017, 32 in 2018 and 18 in 2019, according to its 2020 annual crime report.
Hill said the data shows that campus sexual assault is prevalent at UNC. In the four years that she’s been a student, the issue has become easier for students to talk about, particularly with the #MeToo movement.
But she said this bill has the “potential to further suppress voices that have been historically silenced and dismissed.”