Rights Group Proposes Bill to Properly Handle Campus Sexual Assault
June 28, 2016
In anticipation for reauthorizing the Higher Education Act of 1965, a group dedicated to student rights has offered up model legislation that would make campus sexual assault investigations fairer.
The group, called Stop Abusive and Violent Environments, released the model bill on June 22 and is working to lobby Congress for its adoption. The bill “supports the rights and interests of both the complainant and accused student, and encourages the involvement of local criminal justice authorities,” SAVE wrote. The bill could also be adapted for the state level as well.
“Sexual violence can have a devastating impact on victims. Institutions of higher education need to take into account the legitimate interests and rights of complainants and accused students to assure a fair and transparent adjudication process and to achieve reliable outcomes,” the proposed bill states. “All parties should seek to ensure the campus adjudicatory system follows due process procedures in order to protect the innocent and accurately identify the guilty.”
The bill reins in the ever-expanding definition of sexual assault by limiting it to existing standards. For example, it defines sexual harassment according to a Supreme Court finding (Davis v. Monroe) which says the harassment must be “severe, pervasive and objectively offensive.” In recent years, through “guidance” documents issued by the Education Department’s Office for Civil Rights, colleges and universities have dropped the “objective” part of the definition and allowed anything that anyone sees as offensive (even if most wouldn’t) as enough basis to investigate a student.
The bill also ensures that support services are offered to both the accuser and the accused. In many bills on the issue and at many campuses, an accuser is provided numerous services while the accused must fend for themselves. The obvious reason for this is that pressure from the federal government has forced schools to treat accusers as instant truth-telling victims and the accused as guilty from the start.
Accusers would still be walked through the process and have their reporting options listed for them, but confidential advisers would also be required to inform them that a campus court is no substitute for the criminal justice system if an accusation meets the definition for sexual violence. The bill also requires accused students to be informed of the procedure and how they can obtain reports and evidence that could be used in the hearing.
As for investigations, schools would be required to have investigators “make reasonable efforts to contact all potential witnesses, not just those recommended by the complainant or accused student.” Currently, witnesses who don’t support the accuser’s story are often ignored, and witnesses suggested by accused students aren’t even spoken to about the accusation.
Schools would also be required to “thoroughly document and/or videotape” communications with witnesses, interviews with the accuser and accused and all evidence collected so that all parties involved have access before a disciplinary hearing.
The most important thing in this proposed bill is the adherence to due process rights and the presumption of innocence. Accused students would have to be informed of the accusation against them, be allowed to obtain an attorney, be informed of their right to remain silent (as anything they say can be used in a criminal court) and be allowed to cross-examine witnesses. Accusers would also enjoy these same rights of a right to counsel and cross examination, of course.
A bill like this, which protects the accuser and the accused, is a welcome change from the fact-free, witch-hunt bills currently proposed in Congress that rely on debunked statistics and fear-mongering rather than common sense.