Feb. 24, 2014
An update regarding the issue of campus due process and sexual assault allegations in California:
FIRE has a powerful statement condemning SB 967, the California bill designed to codify (and go beyond) the anti-due process approach of the OCR’s “Dear Colleague” letter. FIRE correctly observes that while campus administrators “are neither qualified nor equipped to respond properly to sexual assault allegations,” the California legislature seems intent on entrusting “them with still greater responsibility. Injustice will inevitably be the result.”
The statement calls into question the sponsors’ impartiality, noting that the bill repeatedly uses the term “victim,” as if the mere leveling of a sexual assault allegation makes someone a victim. FIRE also notes that while SB 967 purports to mandate adjudication of campus sexual assault claims according to the standard of civil litigation, unlike accused students on campus, civil trials feature “impartial judges, unbiased juries of one’s peers, representation by counsel, mandatory ‘discovery’ processes to ensure that all parties have access to relevant information, restrictions on unreliable evidence like hearsay or prior bad acts, and sworn testimony under penalty of perjury.” Finally, FIRE observes the impossibility of enforcing the bill’s “affirmative consent” standard.
Hans Bader echoes these sentiments in a letter to the Sacramento Bee, observing that the bill’s allowance of anonymous sexual assault complaints would effectively deny accused students all right to cross-examine their accuser.
The sponsors of the bill, however, have shown no signs of backing down–though they’re struggling to offer a consistent argument. The measure’s chief sponsor in the California Senate, Kevin de León, recently expressed his pleasure that there was now “more attention on this pressing issue – Sexual assault is ‘a crime; it’s a simple, straightforward crime.'”
Yet his bill treats sexual assault as anything but a “a simple, straightforward crime.” It mandates conviction through a preponderance of evidence standard–unlike all other crimes in California. It defines sexual assault on campus (the “affirmative consent” standard) differently from the state’s general sexual assault statute, which contains no such provision. It remains silent on whether students accused of sexual assault on campus have a right to an attorney–a right that would be constitutionally required if campus sexual assault were, in fact, “a simple, straightforward crime.”
According to one of the bill’s co-sponsors, however, none of this is problematic: Senator Hannah-Beth Jackson recently approvingly tweeted an article from Ms. that claimed SB 967 will make California a “national leader” on how state governments should legislate on campus sexual assault claims.
To date, no member of the California legislature has expressed opposition to SB 967.