The House of Representatives’ Bipartisan Task Force to End Sexual Violence convened yesterday to hold a roundtable discussion about sexual violence in both the K-12 and college settings. I was privileged to be one of the witnesses invited to participate.
The members of the Task Force began the conversation with thoughtful statements. Representative Ann McLane Kuster, for example, observed, “Too often conversations about these proceedings break down into two camps: those in support for the rights of the accused, and those who support protections for survivors of sexual assault. These are not mutually exclusive.”
I made a similar point in my verbal testimony, where I set forth four broad principles which FIRE believes should guide national policy on addressing campus sexual misconduct. As I told the Task Force, “The final broad principle is that the only way our solutions will be sustainable is if they are mindful of the rights of all students. FIRE wants every institution to take every allegation seriously, and we want every student to know that their case will be handled fairly.”(I went into a more depth in my written supplemental testimony.)
Representative Patrick Meehan also acknowledged that a balanced approach to addressing the issue was necessary in his opening statement, where he explained that “we are looking at universities to play a role in getting the victims the opportunity to try to resolve [allegations of sexual assault], but as we do that, appreciating the very delicate balance that exists in which all students have an expectation of the right to due process.”
The roundtable discussion allowed for in-depth discussion of a few of the aspects of campus sexual assault. One of the most notable parts of the discussion was when Representative Jackie Speier asked the members of the panel “whether the statistics that [offer] the three to eight percent, whether you believe that that is accurate in terms of those that are falsely accused?”
Daniel Swinton, Vice President of ATIXA, the Association of Title IX Administrators, helpfully pointed out that the three to eight percent statistic is about the veracity of claims reported to law enforcement — not campus administrators. When I was given the opportunity to respond, I answered as follows:
I’m not a statistician, so let me start with that proviso and say that there has been a lot of literature that has criticized the statistics and a lot of literature that supports it. My concern is that it doesn’t help us determine in individual cases who is responsible or not. If we knew that only two percent of allegations were true, or if we put the response the other direction, we would still want one hundred percent of complaints to be treated very seriously. Because even if it was incredibly rare — I mean, I don’t care how rare it is — we want it to be treated fairly. I want everyone who is accused to also be treated with that same fundamental fairness regardless of how often or rare it is that the accusation is wrong.
I highlight this exchange because it illustrates why it is so important to avoid allowing statistical assumptions to drive the drafting of policy that will determine adjudication procedures. While statistics can be helpful in determining whether sufficient resources are being expended on addressing public policy concerns, constitutional rights are not subject to limitation on that basis. Moreover, when fact-finders are trained that false accusations are rare, that can subconsciously color the fact-finder’s objectivity. For example, if a fact-finder starts with the premise that 98 percent of accusations are true, and that assumption is allowed to influence the adjudication procedures, those procedures become nothing more than a rubber stamp. Getting things right each time requires carefully considering the available evidence in each case. I am glad that I was able to have that exchange with Representative Speier, and I hope that it opens the door for more conversations in the future.
FIRE was honored to participate in this roundtable discussion, and we look forward to follow-up discussions with members of the Task Force. Only by working together can we craft policy that is effective and fair to all students.