Author: saveadmin

Contact: Gina Lauterio

Email: info@saveservices.org

Dept. of Education Sexual Assault Program Falls into Disarray; SAVE Calls on Congress to Take Action

WASHINGTON / October 7, 2015 – The Department of Education has long claimed that universities must comply with its campus sexual assault policies or risk loss of federal funding. But in testimony to the Senate Homeland Security Committee, two Department of Education officials recently admitted that its 2011 Dear Colleague Letter is non-binding guidance that does not hold force of law: https://www.thefire.org/second-department-of-education-official-in-eight-days-tells-congress-guidance-is-not-binding/

This admission portends the necessity of a major overhaul of Department of Education’s sexual assault policies and practices:

1. The Education Department will need to rewrite existing guidance documents, such as its 2014 Questions and Answers on Title IX and Sexual Violence, to conform to the altered legal status of the Dear Colleague Letter, often referred to as the “DCL.”

2. The legal validity of settlement agreements with dozens of universities, which were based on the DCL “requirements,” is now called into question.

3. The Department of Education must decide whether to suspend or terminate ongoing investigations at over 100 universities.

In addition, universities across the nation will need to consider revamping their sexual assault policies, especially in light of the growing number of lawsuits by expelled students alleging the university removed their constitutionally protected due process rights.

In direct violation of legal requirements, the Dear Colleague Letter was published without prior public review and comment. Given the long-standing pattern of improper and unlawful Department of Education actions in this area, SAVE is calling on Congress to assert its full oversight and legislative authorities.

“For over four years, a rogue Department of Education has strong-armed schools with the threat of removing their federal funding,” notes SAVE spokesperson Sheryle Hutter. “These practices amount to nothing less than illegal bureaucratic extortion.”

The DCL has become a lightning-rod for legal controversy. Last October, 28 Harvard law school faculty members published an open letter expressing “strong objections” to a new Harvard sexual assault policy. Hundreds of editorials have criticized the Dept. of Education letter and resulting campus policies: http://www.saveservices.org/sexual-assault/editorials/2015-2/

Contact: Gina Lauterio

Email: info@saveservices.org

Survey Labeled Students as Sex Offenders for Violating Policy that Didn’t Exist:

SAVE Calls on AAU to Retract Flawed Campus Study

WASHINGTON / September 23, 2015 – A widely publicized survey on campus sexual assault by the Association of American Universities (AAU) classified male students as violators of affirmative consent policies, even when such policies were not in existence on the campus at the time the survey was conducted. SAVE is calling for AAU to retract the survey and recalculate its findings.

On September 21, the AAU released its Campus Climate Survey on Sexual Assault and Sexual Misconduct, which was conducted at 27 colleges around the nation. The survey reported that 23.1% of female undergraduates experience sexual assault or sexual misconduct sometime during their college careers.

The survey defined “sexual misconduct” to include failure to obtain affirmative consent. But affirmative consent is a controversial, possibly unconstitutional policy, and most colleges had not implemented the policy when AAU fielded the survey in April 2015.

An internet search of the terms “affirmative consent,” “student handbook,” and the name of each university reveals that at the time the AAU survey was conducted:

— For 15 out of the 27 colleges, no affirmative consent policy was in place when the survey was conducted

— For 9 colleges, an affirmative consent policy is currently in place, but the date of implementation is unknown

— For 3 colleges, affirmative consent policy was known to be in place when the AAU survey was carried out

The AAU report makes the claim that 11.4% of undergraduate females were “victimized” by the absence of affirmative consent. But for at least 15 out of the 27 colleges, no affirmative consent policy was in place. Therefore, absence of affirmative consent cannot be considered to represent sexual misconduct at these institutions, and the 23.1% female victimization figure is substantially over-stated

“Only in an Orwellian world would students be smeared as sex offenders for violating a policy that didn’t even exist,” notes SAVE spokesperson Sheryle Hutter. “The Association of American Universities needs to retract the survey and recalculate its findings based on whether an affirmative consent policy was in place when the survey was conducted.”

The AAU survey has been criticized for its low response rate, its failure to adequately explain “incapacitation” to respondents, and other reasons. A listing of the status of the affirmative consent policies for the 27 colleges can be seen here: http://www.saveservices.org/sexual-assault/aau-survey/

Stop Abusive and Violent Environments is working to promote effective solutions to campus sexual assault: http://www.saveservices.org/

Contact: Gina Lauterio

Email: info@saveservices.org

Law Professors Voice Concerns Over ‘Affirmative Consent’ Policies for Sex

WASHINGTON / September 9, 2015 – A growing number of legal scholars are expressing concerns over affirmative consent policies that some universities are considering for implementation. The concerns follow recent passage of laws in California and New York mandating such policies on college campuses.

This past week, Tamara Rice Lave of the University of Miami law school wrote on her blog, “I have a problem with legally requiring affirmative consent. I don’t see how making a person prove that her partner consented doesn’t switch the burden of proof to the accused…I find this trend to be extremely troubling.” http://prawfsblawg.blogs.com/prawfsblawg/2015/09/affirmative-consent-and-switching-the-burden-of-proof.html

Nadine Strossen, former president of the American Civil Liberties Union and current professor at New York Law School, recently noted, “These affirmative consent rules violate rights of due process and privacy. They reverse the usual presumption of innocence. Unless the guy can prove that his sexual partner affirmatively consented to every single contact, he is presumed guilty of sexual misconduct.”  http://news.hamlethub.com/ridgefield/events/48981-former-aclu-president-nadine-strossen-will-be-the-keynote-speaker-at-wcsu-s-constitution-day

Professor Corey Yung at the University of Kansas worries that affirmative consent policies are ineffective and may turn out to be harmful to victims: “because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative.” http://concurringopinions.com/archives/2014/10/californias-college-rape-rule-is-probably-a-bad-idea-but-not-for-the-reasons-the-critics-say.html

In his law review article, Touro Law School professor Richard Klein undertook a detailed analysis of state rape statutes and concluded, “Instead of the historical requirement that the state prove each element of the offense – and lack of consent is the crucial element – it may well now be the case that the defendant must prove that there was consent by a preponderance of the evidence.” http://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?article=1075&context=scholarlyworks

On August 4, judge Carol McCoy overturned a decision of the University of Tennessee at Chattanooga to expel a student on allegations of sexual assault. McCoy ruled the university “improperly shifted the burden of proof…Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.” https://kcjohnson.files.wordpress.com/2013/08/memorandum-mock.pdf

Stop Abusive and Violent Environments is working to promote effective solutions to campus sexual assault: http://www.saveservices.org/

Contact: Gina Lauterio

Email: info@saveservices.org

Four Rulings, Four Reversals: Judges Give ‘Thumbs Down’ on Campus Sex
Tribunals

WASHINGTON / August 25, 2015 – In four recent cases, judges have overturned sexual assault findings by campus disciplinary committees. In each case, the judges ruled the college proceedings lacked necessary due process protections. As the new academic year begins, these judicial decisions highlight the need for renewed focus on fairness in college sex assault cases, SAVE says.

In the most recent case, federal judge Norman Moon ruled that Washington and Lee University created a climate of gender discrimination that served to “railroad” students who are wrongly accused of sexual assault. The judge concluded the university’s bare-bones adjudication process “plausibly support a Title IX claim” by the plaintiff. See Doe v. Washington & Lee Univ.: https://d28htnjz2elwuj.cloudfront.net/wp-content/uploads/2015/08/06171146/Opinion-on-MTD.pdf

In a landmark case, Judge Carol McCoy ruled that the affirmative consent standard used by the University of Tennessee-Chattanooga was unfair because the rule “erroneously shifted the burden of proof” to the defendant, robbing the student of his due process rights. McCoy noted that “requiring the accused to affirmatively provide consent… is flawed and untenable if due process is to be afforded to the accused.” https://kcjohnson.files.wordpress.com/2013/08/memorandum-mock.pdf

In mid-August, Los Angeles Superior Court Judge Robert H. O’Brien barred the University of Southern California from expelling Bryce Dixon, a football player who was expelled on an allegation of sexual assault. The judge found that that the university’s sexual assault adjudication process was fundamentally unfair to accused students: http://reason.com/blog/2015/08/13/judge-stops-usc-from-expelling-football

And in July, Superior Court Judge Joel Pressman overturned a decision to suspend a University of California-San Diego student based on an allegation that consent for sex had not been obtained. Concluding “the hearing against petitioner was unfair,” Judge Pressman found serious procedural flaws in the university’s handling of the case: http://documents.latimes.com/uc-san-diego-sex-assault-case-ruling-doe-vs-regents-uc-san-diego/

“The presumption of innocence and due process lie at the very heart of notions of fairness and justice,” notes SAVE spokesperson Sheryle Hutter. “Universities that flaunt these standards can expect to become the focus of judicial scrutiny.”

Lack of due process could be harmful to victims, as well. In a recent editorial, columnist Ashe Schow highlighted the fact that faulty campus procedures “could also mean an actual rapist would be able to use the legitimate justice system to have his expulsion overturned.” http://www.washingtonexaminer.com/lack-of-campus-due-process-could-one-day-help-an-actual-rapist/article/2570559

SAVE recommends that colleges forward allegations of sexual assault to local police for investigation and possible prosecution.

Stop Abusive and Violent Environments is working to promote effective solutions to campus sexual assault: http://www.saveservices.org/