Due Process for accused not a priority in campus sexual assault reform bill
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.
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This is a stupid response to a mythical issue.
It IS part of the War On Men.
Yes, Real American Men like you are being deprived of your RIGHT to sexually assault women. You should run on the War on Men meme in 2016, by the way.
This comment floors me. I suppose I don’t know Gus well enough.
No due process for Gus. Let’s see how he likes that.
Proving once again that moronic Collectivist trolls have absolutely no respect for due process or the rule of law being applied without prejudice.
Thanks for the demonstration. Now go away, and don’t come back.
The correct reaction to this sort of kangeroo court is explained by a parent:
“If my son were accused of rape and not apprehended by the police for lack of evidence but rather placed in an administrative collegiate tribunal I believe I would unleash the hounds of hell on the university and each and every individual participating in the kangaroo court. I would sue them for practicing law without licenses, I would sue them for slander, I would sue them for whatever I could pay a lawyer to think up to sue them for. And then I would sue the parents of the students participating in the kangaroo court and I would sue the accuser and her parents. And of course, the school.”
And, with a decent lawyer, he would win.
This will give you a good background on the NON-issue of “campus rape”, and how bad this Senate bill is.
why is this a us senate issue?
every state has laws on the book that deal with this.
all they need to do is follow those laws not add another set of laws.
the reason this happens is because someone, in some fit of idiocy, has allowed university personnel to play cops and judges by themselves.
Right. Sexual assault, I believe, is already a crime. Why are the colleges involved in this at all?
The Golden Rule is at work: he who has the gold makes the rules. The federal government controls a nice chunk of funding and therefore can and therefore will insert itself into whatever it can get away with. A kind of Murphy’s Law of regulation.
Two words: Duke Lacrosse.
Luckily, those boys were exonerated from false accusations because they had a system that values due process (and supportive and wealthy families willing to spend millions of dollars to defend them).
But aside from the important due process issue, it’s repulsive to me that an alleged conservative like Rubio is abandoning the idea of federalism to push for a one size fits all, top down, centrally planned policy invented by people in a far away capitol. The progressive narcissism is unbelievable. Let states, local governments and university administrators first decide if it is a problem worth addressing. If it is, then it is THEIR responsibility to design policies to address it. Let them experiment with policies at that level. Good policies that work will then spread and bad policies will die.
Rubio is now 0 for 2. First he decided to pander to Hispanics by allowing himself to be McRINO’s front man on amnesty even though Rubio campaigned against it. Now he is pandering to single young women. And neither of Rubio’s pandering efforts are going to work with the groups he is pandering to and will only alienate him with conservatives. Bad judgment on his part. Not presidential material in my book.
I agree with your comment about Rubio.
The lacrosse team did not receive anything like due process from Duke. Quite the contrary. They eventually got due process from the legal system, once they escalated it past the corrupt DA.
Only steps needed in the law:
1. CALL THE POLICE!
2. Provide that the victim receive proper medical care consistent with police procedure to protect evidence.
3. Provide that the victim receive properly trained and adequate mental health services for their recovery and victim’s advocate services to help them through the trial.
4. Assist the police in investigating the CRIME of sexual assault to its conclusion, whatever that may be.
5. AFTER CONVICTION, properly expel the CRIMINAL. In the event the accused is acquitted, provide them with the support they need to reintegrate into the campus. If it is proven the whole thing was a set-up, false accusation, or malicious prosecution, EXPEL THE ACCUSER, they’re dangerous.
See – short law.
What if the accused is acquitted, or not even brought to trial, because the accusation, while probably true, can’t be proved beyond reasonable doubt? Such a person does not belong in prison, but nor does he (or she) belong on campus. There needs to be a procedure for the college to determine whether a person is dangerous to have around, independent of the law’s determination whether to lock him up.
And what if the college determines that the accusation is likely to be false, at least likely enough that it can’t in good conscience expel the accused; what should the standard of evidence be for punishing the accuser? Once the tables are turned, she (or he) is now the accused, and entitled to the same rights and presumption of innocence that the person she (or he) accused was entitled to. I imagine that in most cases, if they’re handled impartially, you will get an undetermined result, where neither party can be disciplined, and both must remain on campus, with this hanging over both their heads.
“What if the police say we think it’s probably true, but we can’t prove it beyond reasonable doubt, so we can’t lay charges? What does the university do then?”
Give him the Heisman Trophy!
Um, what? I’m asking a serious question here. If you agree with the proposals set forth by “Amazed”, please address my objections seriously. And if you can’t be serious about a serious issue, then shut up. This isn’t a joking matter, for anybody; least of all for the falsely accused.
Enough of this bullshit.
Universities shouldn’t be ALLOWED to have any part in this process.
If a student makes an accusation, the police need to be called, and if there is sufficient evidence, a CRIMINAL TRIAL should take place.
Enough of these kangaroo courts so they can punish people without evidence.
What if the police say we think it’s probably true, but we can’t prove it beyond reasonable doubt, so we can’t lay charges? What does the university do then? If the accusation is actually true, it can’t have such a person on campus. It has to provide a safe environment. So it has to conduct its own investigation, with a looser standard than reasonable doubt. The problem is that these “investigations” are going well beyond that, and taking for granted that the accusation must be true, with proof a mere formality if that.
What if a boy and a girl have a 2 year sexual relationship, the girl invites the boy to dinner with her parents … twice… and then the girl finds out he slept with another girl …so she charges him retroactively with rape?
Is that really rape?
Isn’t this why we have a legal system? I mean, if you want to go back to lynch mobs … you’re a Dem, rigth? The party of the KKK?
No, of course that isn’t rape. Now why don’t you answer my question? How is a college to determine whether to expel an alleged rapist or assaulter, if, as you demand, it must have no fact-determining process of its own? Relying on the legal system is not enough, because the legal system is deliberately designed to acquit many guilty people.
Criminal sanctions can only be applied if a person’s guilt can be proven beyond reasonable doubt — so what’s a college to do with those criminals whose guilt can’t be prove to that standard? It can’t just let them stay on campus and rape again.
Hm. You can’t have it both ways. If Bob is accused of a crime, and is NOT convicted by the justice system, he is considered innocent, and can not be then subjected to punishment based on his NOT being convicted. Otherwise you are making the illogical statement:
“I believe you are innocent, therefore you are being punished.”
Now add in that the accused is placed in a situation where it is literally impossible to prove his innocence beyond the shadow of a doubt, and therefore will be punished regardless of his actions, and you have… this law.
No place on Earth enjoys the right to absolute “safety” for anyone. Unfortunately Johnny and Jane’s parents can’t grasp this fact. They think that if there is ANY threat to Johnny and Jane’s safety then it HAS to come to pass. Their safety has to met at all costs and no one will convince their parents otherwise. If this sounds like the problem facing the nation as a whole then you might be on to something.
A college has a legal obligation to provide a safe environment for its students, just as an employer does. Do you deny that an employer who knowingly kept a probable rapist on staff would be in breach of his duty of care, and liable for anything that person did? How can you deny that the same applies to a college? And if it does apply, then surely the college needs some way of determining who is a dangerous person to have around, even if the criminal justice system can’t touch that person?
So Rubio has rolled over for the left AGAIN. Looks like he’s another McCain who thinks the best way to become president is to suck up to the press.
Due process for the sponsors and supporters of this bill should not be a priority.
Sexual assault and sexual harassment have no doubt are serious offenses and must be taken seriously. But, false accusations do happen and when they do, the person making a false claim should suffer the consequences. That said, due process is essential. College and universities are not Article III courts equipped to handle these matters and should not be adjudicating criminal or serious civil charges. I agree with those who say the police should be called, the investigation should be run by state authorities. This is a police power issue, the feds do not belong in this arena. The presumption of innocence should apply, it is a basic part of common law due process, what sets us apart from Roman or Civil Law where an accused is guilty until proven innocent. The rights of both accuser and accused should be protected in defense of our legal system.
And I repeat once again that the colleges are not adjudicating criminal or serious civil charges. They are adjudicating whether to expel or discipline their students. Surely that is a matter for them, not for the criminal justice system. And if you think it should be handled by that system then please tell me what a college is supposed to do with what must be a common case, where a student is probably a rapist, but it can’t be proven beyond reasonable doubt. The criminal justice system can’t charge such a person, and yet the college has a duty to keep him off campus. How is it to do so, without its own fact-finding process?
You also say that the person making a false claim should suffer the consequences. Again, I ask, what about the common case where it can’t be proven to any degree of certainty whether the accusation is true or false? What if it’s only probably false? Let alone if it’s probably true, but not to the degree of certainty required to expel the student?
And how does this situation differ from what happens in our court system outside of campus, when suspected criminals are not charged because of insufficient evidence to take them to trial? Do you suggest depriving them of their liberties without due process of law, as guaranteed by our Constitution?
Why then do you recommend destroying someone’s reputation, future employability, not to mention their prior investment in education on the basis of suspicion? This would and should open the university to a huge civil liability at the least, and perhaps other actions as well.
Bottom line, there is not way that one can make a campus – or anywhere else – 100% safe. That’s the vicissitudes of life, bad things can happen to good people.
Well, I suppose if you use police state tactics with total monitoring, etc., you could get >99% safety, but where does that leave the concept of living in a free society?
The principle of “guilty until proven innocent” was established with the normalization of abortion and other civil “rights”. It is a consequence of a degenerate religion based on collective and inherited sins, where individual character is routinely defamed in the pursuit of political, social, and financial leverage.