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FIRE Critiques White House Task Force’s Recommendations at ‘National Review Online’ and ‘Huffington Post’

By May 8, 2014

FIRE’s Samantha Harris has an excellent op-ed today at National Review Online responding to the report released last week (PDF) by the White House Task Force to Protect Students from Sexual Assault. As FIRE has pointed out since the report and its ancillary materials were released, the Task Force’s guidelines to colleges and universities threaten the due process rights of students accused of sexual assault and sexual harassment and invest in a broken system despite the fact that universities have largely proven themselves incapable of adjudicating the serious offenses of sexual assault and rape.

In her op-ed, Samantha makes these points eloquently, and also questions the methodology used for the often-cited statistic that “one in five women is sexually assaulted on campus”:

But this figure, which comes from the 2007 Campus Sexual Assault (CSA) Study, is hardly undisputed. The questions used to assess the prevalence of sexual violence included questions about sexual contact that occurred in cases where someone was “drunk,” not only in cases where the person was “incapacitated.” Moreover, the study asked about a variety of forms of sexual contact, including not only penetration and oral sex but also “forced kissing” and “rubbing up against you in a sexual way, even if it is over your clothes.”

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One of the Task Force Report’s major recommendations is that universities conduct “campus climate surveys” to assess (among other things) rates of sexual violence — indeed, the report states that these surveys may be mandatory by 2016. But the “toolkit” included to help schools create their campus-climate surveys includes a questionnaire that simply repeats the ambiguous questions from the CSA Study. This, of course, virtually guarantees that a high percentage of survey respondents will meet the definition of a “victim of sexual violence,” even if many of those respondents did not experience any of what most people would call violence and do not feel they were victimized.

There’s much more about this important point in Samantha’s piece, which you can check out at National Review Online.

In the meantime, I also authored an article examining the White House Task Force’s guidelines, posted yesterday at The Huffington Post. In that article, I focus on the Task Force’s “Checklist for Campus Sexual Misconduct Policies,” one of the documents released with last week’s report. As I write, the Task Force has erred with several of its specific recommendations for university policy:

Foremost among the problems with this document is that it provides for use of the “preponderance of the evidence” standard of proof in campus disciplinary hearings on these matters. The preponderance standard — as student rights and civil liberties advocates like FIRE have argued repeatedly — is insufficient to protect the rights of the accused and to ensure the reliability of a hearing’s outcome. Our judiciary’s lowest evidentiary standard, the preponderance standard requires only a 50.01 percent likelihood that an offense was committed to find someone responsible for the offense. The need for a more robust standard should be especially clear in sexual assault cases, which often involve unclear and disputed fact patterns, “he said, she said” narratives, and complicating factors such as the use of alcohol and the lack of reliable witnesses. In this context, one would reasonably think, more proof is necessary to ensure accuracy of findings, not less.

For more about this crucial policy document, as well as an overall picture of the Task Force’s guidelines, head on over to The Huffington Post. And if you haven’t already, please check out additional FIRE writings in Forbes Opinion and WGBH (Boston, Mass.).

Cases: National: White House Task Force on Campus Sexual Assault Jeopardizes Student Due Process