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Connecticut Campus Sexual Assault Bill Further Undermines Due Process

By August 18, 2014

In recent months, lawmakers in Congress and in states across the country have proposed legislation addressing sexual assault on college campuses. Here on The Torch, we’ve written about the federal efforts as well as California’s troubling affirmative consent bill, SB 967.

With the focus on those bills, little attention has been paid to Connecticut’s new campus sexual assault law. In May, Connecticut passed House Bill 5029, yet another bill that is likely to do little to protect students from sexual assault but certain to reduce accused students’ due process rights and imperil the accuracy of college proceedings. While HB 5029 has some provisions that might help colleges and universities appropriately respond to sexual assault allegations, these small steps forward are overshadowed by provisions that will be ineffective or will undermine the rights of accused students.

On the positive side of the ledger, the new law states:

[B]oth the victim of such assault, stalking or violence and the accused (i) are entitled to be accompanied to any meeting or proceeding relating to the allegation of such assault,stalking or violence by an advisor or support person of their choice, provided the involvement of such advisor or support person does not result in the postponement or delay of such meeting as scheduled, and (ii) shall have the opportunity to present evidence and witnesses on their behalf during any disciplinary proceeding …

This language is helpful because it expressly prohibits state colleges from denying students the assistance of advisors in sexual assault hearings. Similar language was included in the Violence Against Women Reauthorization Act of 2013 (VAWA), which was passed by Congress last year but will not go into effect until 2015. Proposed rules regarding the implementation of VAWA are currently making their way through the regulatory process. Those proposed rules would make clear that students have the right to choose attorneys to serve as their advisors. The language in this clause now brings this positive change to Connecticut.

But despite this useful clause, there is much to be concerned about with the legislation. For example, it codifies the federal Department of Education’s Office for Civil Rights’ (OCR’s) misguided mandate that colleges and universities decide these cases using the low “preponderance of the evidence” standard of proof.

Another critical shortcoming of the bill is that the law continues to treat the adjudication of sexual assaults as an issue that should be resolved on campus, as opposed to being resolved by law enforcement experts and criminal courts. In an editorial critiquing the bill, The Connecticut Law Tribune points out the problems engendered by entrusting campus to do the job of law enforcement:

The tragedy is that even with this flawed hearing process, the public is not protected. If the hearing officer decides the student-defendant committed a sexual assault, the officer can expel or suspend that student and include a notation on his transcript that he committed a sexual assault. The student is then returned to the community with none of the restrictions that the criminal justice system could impose on a sexual predator; no incarceration, parole, probation or sexual registry. Sexual assault is a serious crime and should be treated that way. Unfortunately, the bill doesn’t address the issue of when an allegation of sexual assault should be handled in the criminal court system, instead of by some administrative hearing.

Legislation that doubles down on college disciplinary hearings as alternatives to the criminal justice system endangers the public. These legislative fixes attempt to make the campus disciplinary system a simple “solution” for students who have suffered sexual assault—but in so doing, these legislative initiatives inevitably and dangerously divert meritorious claims away from formal law enforcement channels that are actually equipped to determine guilt and punish perpetrators.

Instead of tinkering with campus disciplinary hearings, lawmakers should be helping universities provide support services to alleged victims, including counseling services and academic and housing accommodations. Institutions can also take measures to ensure that complainants are connected to the appropriate medical professionals and law enforcement experts at the outset. Facilitating these connections might improve evidence-collecting and thus help secure more accurate findings—and more convictions in an actual court of law.

Institutions can do a lot to make campus environments more comfortable for victims of sexual assault. Lawmakers would be wise to focus on helping colleges and universities fulfill those functions and abandon attempts to provide alternative “justice” systems on campus.

Cases: National: Violence Against Women Act Reauthorization U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections