New efforts to curb campus sexual assault may be ignore the need for due process on behalf of the accused.
On July 30, 2014, Senator Marco Rubio (R-FL) helped introduce the “Campus Accountability and Safety Act,” a bipartisan initiative aimed at forcing universities to address and curb the problem of sexual assault on college campuses.
During a press conference Wednesday, the coalition pushing the Act emphasized problems with existing policies, saying that current federal law actually encourages universities to under report sexual assaults that occur on campus.
In a summary distributed to the press and public, Senator Mark Warner (D-VA) said that “[t]he bipartisan Campus Accountability and Safety Act will create incentives for schools to take proactive steps to protect their students and rid their campuses of sexual predators.” The full breakdown of the Act states several key goals:
- Establish new campus resources and support services for student survivors
- Ensure minimum training standards for on-campus personnel
- Create new historic transparency requirements
- Increase campus accountability and coordination with law enforcement
- Establish enforceable Title IX penalties and stiffer penalties for Clery Act violations
The dispute regarding how we handle sexual assault on campus is neither new, nor novel, but the loudest voices advocating for reform tend to ignore the real controversy: a lack of due process afforded to the accused.
This Act, in its current form, appears to completely ignore this problem. Ashe Schow notes:
Will there be “support services” for the accused?
The bill will establish “university support for survivors of sexual violence.” Nowhere does it mention any kind of support services for those accused.
The “confidential advisers” designated to assist accusers will “perform a victim-centered, trauma-informed (forensic) interview” with the accuser. They will also inform the accuser of what they can do next, whether that be notifying campus officials or local police. The advisers may also assist accusers in reporting the incident.
Nowhere does the bill mention any services for the accused (note: accused means innocent until proven guilty). Will there be someone on campus providing them with information on what they can do to provide for their own defense? Will they be informed of their rights, and will those rights be under the law (due process) or under campus rules? Will they have the right to legal counsel in disciplinary proceedings?
In a statement to the Washington Examiner, American Enterprise Institute scholar Christina Hoff Sommers, one of the leading voices for responsible college sexual assault policy, decried the absence of due process rights for the accused in the bill.
“The campus gender activists who have promoted the new laws may not care about the rights of the accused, but U.S. senators have to care,” Hoff Sommers said. “They are the guardians of a legal tradition that takes exacting precautions to avoid convicting an innocent person of a crime.”
“Presumed guilty seems to be the new principle,” she added.
As Legal Insurrection has previously reported, college campuses tend to ignore the rights of the accused in favor of speedy, no-muss-no-fuss resolutions to conflict:
The Department of Education mandates colleges to handle every single student sexual assault through internal quasi-legal proceedings, in which the school performs all the roles of investigator, prosecutor, judge, executioner and statistics compiler.
From the perspective of accusers in campus sexual assault cases, they may very well prefer a quasi-legal adjudication of their complaints because it provides a much broader definition of sexual assault, a much lower burden of proof and an environment in which “student’s rights” tend to be accuser’s rights, with little emphasis on rights for the accused.
For the accuser, it makes the alleged post-assault experience that much less stressful.
From the accused’s perspective, though, he’s not gonna know what hit him.
At places like Swathmore and Dartmouth, we’ve seen first hand how dangerous it is for a university to take on the role of judge, jury, and executioner in these cases:
In fact, Title IX, that so-called guarantor of equality between the sexes on college campuses, and as applied by a recent directive from the Department of Education’s Office for Civil Rights, has obliterated the presumption of innocence that is so foundational to our traditions of justice. On today’s college campuses, neither “beyond a reasonable doubt,” nor even the lesser “by clear and convincing evidence” standard of proof is required to establish guilt of sexual misconduct.
These safeguards of due process have, by order of the federal government, been replaced by what is known as “a preponderance of the evidence.” What this means, in plain English, is that all my son’s accuser needed to establish before a campus tribunal is that the allegations were “more likely than not” to have occurred by a margin of proof that can be as slim as 50.1% to 49.9%….
According to all of the information provided to the press and public, the Bipartisan Campus Accountability and Safety Act addresses none of these concerns, and instead relies on student surveys and employee training programs to…what? I’m truly at a loss.
Obviously in cases involving a hostile or dangerous environment, university officials have a duty to ensure the safety of their students, and knowing which universities are best at that will help students and parents make decisions regarding college enrollment. But that duty also extends to students who are accused of these admittedly horrifying crimes.
Increasing bureaucratic standards won’t yield the intended result of this legislation–actually curbing sexual assault and making campuses safer–if universities continue to sacrifice actual fact-finding on the altar of political correctness and statistical well-being.
Representatives from Senator Rubio’s office have not yet responded to my questions regarding Senator Rubio’s plans to ensure due process for the accused.